Registration No. 333-
As Filed With The Securities and Exchange Commission on February 23, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Aliant Communications Inc.
(Exact name of registrant as specified in its charter)
Nebraska 47-0632436
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1440 M Street
Lincoln, Nebraska 68508
(402) 474-2211
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Frank H. Hilsabeck With a copy to:
President and Chief Executive Officer Benjamin F. Garmer, III
Aliant Communications Inc. Foley & Lardner
1440 M Street 777 East Wisconsin Avenue
Lincoln, Nebraska 68508 Milwaukee, Wisconsin 53202
(402) 474-2211 (414) 271-2400
(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 this registration statement becomes effective.
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 registered 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
Proposed
Title of Each Maximum Proposed
Class of Debt Offering Maximum
Securities Amount Price Aggregate Amount of
to be to be Per Offering Registratio
Registered Registered Unit(1)(2) Price(1)(2) n Fee
Debt Securities $250,000,000 100% $250,000,000 $73,750
(1) If any Debt Securities are issued at an original issue discount, such
greater amount as shall result in an aggregate offering price to the
public that shall not exceed the amount set forth under Proposed
Maximum Aggregate Offering Price, or if Debt Securities are issued in
a foreign or composite currency, an equivalent amount of such foreign
or composite currency.
(2) Estimated solely for the purpose of calculating the registration fee.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until this
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD
NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE
ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED FEBRUARY 23, 1998
PROSPECTUS
ALIANT COMMUNICATIONS INC.
$250,000,000
Debt Securities
________________
Aliant Communications Inc. ("Aliant" or the "Company") may offer and
sell, from time to time, debentures, notes and/or other unsecured
evidences of indebtedness (the "Debt Securities") at an aggregate initial
offering price not to exceed U.S. $250,000,000 or its equivalent in any
other currency or units based on or relating to foreign currencies. The
Debt Securities will be senior, unsecured indebtedness of the Company and
senior to subordinated indebtedness. The Debt Securities will be
structurally subordinated to all existing and future liabilities,
including trade payables, of the Company's subsidiaries. The Debt
Securities may be offered in one or more series in amounts, at prices and
on terms to be determined at the time of sale. When a particular series
of Debt Securities is offered (the "Offered Securities"), a supplement to
this Prospectus (the "Prospectus Supplement"), will be delivered with this
Prospectus, setting forth, with respect to such Offered Securities, the
specific designation, aggregate principal amount, original issue discount,
if any, denomination (which may be in United States dollars, in any other
currency or in units based on or relating to foreign currencies),
maturity, interest rate (which may be fixed or variable) and time of
payment of interest, if any, any terms for redemption at the option of
Aliant or the holder, any terms for sinking fund payments, any listing on
a securities exchange, the initial public offering price and any other
terms in connection with the offering and sale of the Offered Securities.
The Debt Securities may be issued in registered form, without coupons,
in bearer form with coupons attached or both. In addition, all or a
portion of the Debt Securities of any series may be issuable in temporary
or permanent registered global form which will be exchangeable only under
certain conditions for definitive Debt Securities.
Aliant may sell Debt Securities to or through underwriters or dealers,
and also may sell Debt Securities to other purchasers, directly or through
agents. An accompanying Prospectus Supplement will set forth the names of
any underwriters, dealers or agents involved in the sale of the Offered
Securities, the principal amounts, if any, to be purchased by underwriters
and the compensation of such underwriters, dealers or agents. See "Plan
of Distribution."
________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement applicable to the Offered
Securities.
________________
The date of this Prospectus is ______________, 1998.
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE
IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT
CONSTITUTES AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY
DEBT SECURITIES OTHER THAN THE REGISTERED DEBT SECURITIES TO WHICH IT
RELATES. NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT
CONSTITUTES AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH
DEBT SECURITIES TO ANY PERSON IN ANY JURISDICTION TO WHOM IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT
AS OF ANY TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
Aliant is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information can be inspected and copied at the
public reference facilities of the Commission, Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549; New York Regional Office, Public
Reference Room, 7 World Trade Center, 13th Floor, New York, New York
10048; and Chicago Regional Office, Citicorp Center, Suite 1400, 500 West
Madison Street, Chicago, Illinois 60661. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. Aliant's
Common Shares are listed for quotation on the Nasdaq National Market. The
Company is subject to the electronic filing requirements of the
Commission. Accordingly, pursuant to the rules and regulations of the
Commission, certain documents, including annual and quarterly reports and
proxy statements, filed by the Company with the Commission have been and
will be filed electronically. The Commission maintains a Web site at
http://www.sec.gov containing reports, proxy and information statements
and other information regarding registrants, including the Company, that
file electronically with the Commission.
This Prospectus constitutes a part of a Registration Statement on Form
S-3 filed by Aliant with the Commission under the Securities Act of 1933,
as amended (the "Securities Act"). This Prospectus omits certain of the
information contained in the Registration Statement in accordance with the
rules and regulations of the Commission. Reference is hereby made to the
Registration Statement and related exhibits for further information with
respect to Aliant and the Debt Securities. The Registration Statement and
any amendments thereto, including exhibits filed as a part thereof, are
available for inspection and copying as set forth above. Statements
contained herein concerning the provisions of any document are not
necessarily complete and, in each instance, reference is made to the copy
of such document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission. Each such statement is qualified in
its entirety by such reference.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents heretofore filed by Aliant with the Commission
under the Exchange Act are incorporated herein by reference: (a) the
Company's Annual Report on Form 10-K for the year ended December 31, 1996,
(b) the Company's Quarterly Report for the period ended March 31, 1997,
(c) the Company's Quarterly Report for the period ended June 30, 1997, (d)
the Company's Quarterly Report for the period ended September 30, 1997,
(e) the Company's Current Report on Form 8-K dated November 18, 1997 and
(f) the Company's Current Report on Form 8-K dated December 19, 1997.
All documents filed by Aliant pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering made by this Prospectus shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof
from the date of filing of such documents. Any statement contained herein
or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to
the extent that a statement contained herein (or in any other subsequently
filed document which also is incorporated by reference herein) modifies or
supersedes such statement. Any statement so modified or superseded shall
not be deemed to constitute a part hereof, except as so modified or
superseded. All information appearing in this Prospectus is qualified in
its entirety by the information and financial statements (including notes
thereto) appearing in the documents incorporated herein by reference.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT
PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS (OTHER THAN
EXHIBITS THERETO) ARE AVAILABLE, WITHOUT CHARGE, UPON WRITTEN OR ORAL
REQUEST BY ANY PERSON TO WHOM THIS PROSPECTUS HAS BEEN DELIVERED, FROM THE
INVESTOR RELATIONS CENTER, ALIANT COMMUNICATIONS INC., 1440 M STREET,
LINCOLN, NEBRASKA 68508 (TELEPHONE 1-800-550-2568).
STATEMENT REGARDING FORWARD-LOOKING INFORMATION
This Prospectus and the accompanying Prospectus Supplement may contain
"forward-looking" statements, as defined in the Private Securities
Litigation Reform Act of 1995. All statements, other than historical
facts, that address activities, events, or developments that the Company
expects or anticipates will or may occur in the future, including such
things as expansion and growth of the Company's business, acquisitions,
future capital expenditures and the Company's business strategy are
forward-looking statements. These statements contain potential risks and
uncertainties; therefore, actual results may differ materially. The
Company undertakes no obligation to update publicly any forward-looking
statements whether as a result of new information, future events or
otherwise.
Important assumptions and other important factors that could cause
actual results to differ from those set forth in the forward-looking
information include, but are not limited to: changes in the national and
local economic and market conditions; demographic changes; the size and
growth of the overall telecommunications market; changes in competition in
markets in which the Company operates; advances in telecommunications
technology; changes in the telecommunications regulatory environment; the
need for regulatory approval to make acquisitions or undertake certain
other activities, including rate re-balancing; changes in business
strategy or development plans; pending and future litigation; availability
of future financing; start-up of Personal Communications Services
operations; new product and service development and introductions; changes
in consumer preferences; and unanticipated changes in growth in cellular
customers, penetration rates, churn rates and the mix of products and
services offered in the Company's markets. GIVEN SUCH UNCERTAINTIES,
PROSPECTIVE INVESTORS ARE CAUTIONED NOT TO PLACE UNDUE RELIANCE ON SUCH
FORWARD-LOOKING STATEMENTS.
THE COMPANY
Aliant Communications Inc., formerly Lincoln Telecommunications
Company, is a diversified communications company providing retail products
and services to consumers, businesses, educational institutions and
government agencies as well as wholesale network services to other
communications companies. Consistent with its strategy of providing one-
stop, single source communications services, the Company offers local and
long distance services, wireless services, enhanced services, directory
services, communications systems and equipment and a full range of data
communications services.
The Company's executive offices are located at 1440 M Street, Lincoln,
Nebraska 68508. Its telephone number is (402) 474-2211.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Debt
Securities for general corporate purposes, including working capital, the
repayment or refinancing of indebtedness, acquisitions and/or capital
expenditures. Pending application of the net proceeds for specific
purposes, such proceeds may be invested in short-term or marketable
securities.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of earnings to
fixed charges for each of the years ended December 31, 1993 through 1997.
Year Ended December 31,
__________________________________________________________________________
1997 1996 1995 1994 1993
9.04x 8.52x 6.40x 8.48x 6.96x
For purposes of calculating this ratio, earnings consist of net
income from continuing operations before taxes. Fixed charges consist of
interest expenses, dividends paid on the 5% redeemable preferred stock of
the Company's subsidiary, Aliant Telecommunications Co., and the estimated
interest portion of rentals. The ratio of earnings to fixed charges for
1995 reflects a non-recurring, non-cash charge of $21,611,000 relating to
two workforce restructuring programs. Excluding this charge, the
Company's ratio of earnings to fixed charges for 1995 would have been
8.74x.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture dated as of
February 23, 1998 (the "Indenture") between Aliant and U.S. Bank National
Association, as Trustee (the "Trustee"), the form of which is incorporated
by reference as an exhibit to the Registration Statement of which this
Prospectus is a part. The following statements with respect to the
Indenture and the Debt Securities are brief summaries of certain
provisions of the Indenture and do not purport to be complete. Such
statements are subject to the detailed referenced provisions of the
Indenture, including the definitions of capitalized terms used under this
caption. Wherever particular sections or defined terms of the Indenture
are referred to, such sections or defined terms are incorporated herein by
reference as part of the statement made, and the statement is qualified in
its entirety by such reference. References to "Aliant" in this section,
unless the context indicates otherwise, are to Aliant Communications Inc.
and not its subsidiaries or any other entities in which it holds an
interest.
General
The Indenture does not limit the aggregate principal amount of Debt
Securities (which may include debentures, notes and other unsecured
evidences of indebtedness) which may be issued thereunder, and Debt
Securities may be issued thereunder from time to time in one or more
series and may be denominated and payable in foreign currencies or units
based on or relating to foreign currencies, including European Currency
Units. Special United States federal income tax considerations applicable
to any Debt Securities so denominated will be described in the Prospectus
Supplement relating thereto. Unless otherwise indicated in the applicable
Prospectus Supplement, the Indenture also permits Aliant to increase the
principal amount of any series of Debt Securities previously issued and to
issue such increased principal amount. (Section 2.3)
The Prospectus Supplement will set forth the following terms relating
to the Offered Securities: (1) the specific designation of the Offered
Securities; (2) any limit on the aggregate principal amount of the Offered
Securities; (3) the date or dates, if any, on which the Offered Securities
will mature; (4) the rate or rates per annum (which may be fixed or
variable) at which the Offered Securities will bear interest, if any, the
date or dates on which any such interest will be payable and the Record
Dates for any interest payable on the Offered Securities which are
Registered Securities; (5) original issue discount, if any; (6) any
mandatory or optional redemption or sinking fund provisions, including the
period or periods within which, the price or prices at which and the terms
and conditions upon which the Offered Securities may be redeemed or
purchased at the option of Aliant or otherwise; (7) whether the Offered
Securities will be issuable in registered form or bearer form or both,
and, if issuable in bearer form, the restrictions as to the offer, sale
and delivery of the Offered Securities in bearer form and as to exchanges
between registered and bearer form; (8) whether the Offered Securities
will be issuable in the form of one or more temporary or permanent Global
Securities and, if so, the identity of the Depositary for such Global
Securities; (9) the denominations of $1,000 and any multiple thereof, and
the denominations in which any of the Offered Securities which are in
bearer form will be issuable, if other than the denominations of $1,000
and $5,000; (10) each office or agency where the principal of and any
premium and interest on the Offered Securities will be payable, and each
office or agency where the Offered Securities may be presented for
registration of transfer or exchange; (11) if other than United States
dollars, the foreign currency or the units based on or relating to foreign
currencies in which the Offered Securities are denominated and/or in which
the payment of the principal of and any premium and interest on the
Offered Securities will or may be payable; (12) certain United States
federal income tax consequences; if applicable; and (13) any other terms
of the Offered Securities (which terms shall not adversely affect the
interests of any Holders of Debt Securities then Outstanding), including
additions to or deletions from the covenants and events of default with
respect to the Offered Securities.
Debt Securities may be issued under the Indenture bearing no interest
or interest at a rate below the prevailing market rate at the time of
issuance, to be offered and sold at a discount below their stated
principal amount. United States federal income tax consequences and other
special considerations applicable to any such discounted Debt Securities
or to other Debt Securities offered and sold at par which are treated as
having been issued at a discount for United States federal income tax
purposes will be described in the Prospectus Supplement relating thereto.
The Debt Securities and any coupons appertaining thereto will be
unsecured and will rank pari passu with all other unsecured and
unsubordinated indebtedness of Aliant. However, since Aliant is a holding
company, the right of Aliant, and hence the right of the creditors of
Aliant (including the Holders of Debt Securities), to participate in any
distribution of the assets of any subsidiary, upon its liquidation or
reorganization or otherwise, is necessarily subject to the prior claims of
creditors of such subsidiary, except to the extent that claims of Aliant
as a creditor of such subsidiary may be recognized. There is no
restriction in the Indenture against subsidiaries of Aliant incurring
secured or unsecured indebtedness or issuing secured or unsecured
securities. The ability of Aliant to make payments of principal and
interest on the Debt Securities will be dependent upon the payment to it
by its subsidiaries of dividends, distributions, loans or advances.
The Indenture does not contain covenants or other provisions designed
to afford Holders of Debt Securities protection in the event of a highly
leveraged transaction, change in credit rating or other similar
occurrence.
Exchange and Transfer
Debt Securities may be presented for exchange and registered Debt
Securities may be presented for registration of transfer at the offices,
and subject to the restrictions, set forth therein and in the applicable
Prospectus Supplement, without service charge, but upon payment of any
taxes or other governmental charges due in connection therewith, subject
to any applicable limitations contained in the Indenture. Aliant has
appointed the Trustee as Security Registrar. Debt Securities in bearer
form and the coupons appertaining thereto, if any, will be transferable by
delivery. (Sections 2.8 and 3.2)
Payment
Unless otherwise indicated in the applicable Prospectus Supplement,
payment of the principal of and the premium and interest, if any, on all
Debt Securities (other than a Registered Global Security) in registered
form will be made at the office or agency of the Trustee in the Borough of
Manhattan, The City of New York, except that, at the option of Aliant,
payment of any interest may be made (i) by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer to an account maintained by the Person
entitled thereto as specified in the Security Register. (Sections 3.1 and
3.2) Unless otherwise indicated in the applicable Prospectus Supplement,
payment of any interest due on Debt Securities in registered form will be
made to the Persons in whose name such Registered Securities are
registered at the close of business on the Record Date for such interest
payments. (Section 2.7)
Registered Global Securities
The registered Debt Securities of a particular series may be issued in
the form of one or more Registered Global Securities which will be
deposited with a Depositary, or its nominee, each of which will be
identified in the Prospectus Supplement relating to such series. Unless
and until exchanged, in whole or in part, for Securities in definitive
registered form, a Registered Global Security may not be transferred
except as a whole by the Depositary for such Registered Global Security to
a nominee of such Depositary, by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor of such Depositary or a nominee of such
successor. (Section 2.8)
The specific terms of the depositary arrangement with respect to any
portion of a particular series of Debt Securities to be represented by a
Registered Global Security will be described in the Prospectus Supplement
relating to such series. Aliant anticipates that the following provisions
will apply to all depositary arrangements:
Upon the issuance of a Registered Global Security, the Depositary
therefor or its nominee will credit, on its book entry and registration
system, the respective principal amounts of the Debt Securities
represented by such Registered Global Security to the accounts of such
persons having accounts with such Depositary ("participants") as shall be
designated by the underwriters or agents participating in the distribution
of such securities, or by Aliant if such Debt Securities are offered and
sold directly by Aliant. Ownership of beneficial interests in a
Registered Global Security will be limited to participants or persons that
may hold beneficial interests through participants. Ownership of
beneficial interests in a Registered Global Security will be shown on, and
the transfer of such ownership will be effected only through, records
maintained by the Depositary therefor or its nominee (with respect to
beneficial interests of participants) or by participants or persons that
hold through participants (with respect to interests of persons other than
participants). The laws of some states require certain purchasers of
securities to take physical delivery thereof in definitive form. Such
depositary arrangements and such laws may impair the ability to transfer
beneficial interests in a Registered Global Security.
So long as the Depositary for a Registered Global Security or its
nominee is the registered owner thereof, such Depositary or such nominee,
as the case may be, will be considered the sole owner or Holder of the
Debt Securities represented by such Registered Global Security for all
purposes under the Indenture. Except as provided below, owners of
beneficial interests in a Registered Global Security will not be entitled
to have Debt Securities of the series represented by such Registered
Global Security registered in their names, will not receive or be entitled
to receive physical delivery of Debt Securities of such series in
definitive form and will not be considered the owners or Holders thereof
under the Indenture.
Principal, premium, if any, and interest payments on a Registered
Global Security registered in the name of a Depositary or its nominee will
be made to such Depositary or nominee, as the case may be, as the
registered owner of such Registered Global Security. None of Aliant, the
Trustee or any paying agent for Debt Securities of the series represented
by such Registered Global Security will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial interests in such Registered Global Security or for
maintaining, supervising or reviewing any records relating to such
beneficial interests.
Aliant expects that the Depositary for a Registered Global Security or
its nominee, upon receipt of any payment of principal, premium or
interest, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the
principal amounts of such Registered Global Security as shown on the
records of such Depositary or its nominee. Aliant also expects that
payments by participants to owners of beneficial interests in such
Registered Global Security held through such participants will be governed
by standing instructions and customary practices, as is now the case with
securities held for the accounts of customers registered in "street name",
and will be the responsibility of such participants.
If the Depositary for a Registered Global Security representing Debt
Securities of a particular series is at any time unwilling or unable to
continue as Depositary and a successor Depositary is not appointed by
Aliant within 90 days, Aliant will issue Debt Securities of such series in
definitive form in exchange for such Registered Global Security. In
addition, Aliant may, at any time and in its sole discretion, determine
not to have the Debt Securities of a particular series represented by one
or more Registered Global Securities and, in such event, will issue Debt
Securities of such series in definitive form in exchange for all of the
Registered Global Securities representing Debt Securities of such series.
Certain Covenants of Aliant
Under the Indenture, Aliant has agreed that it will not engage in
certain transactions, as described below.
Limitation on Secured Debt. Neither Aliant nor any Restricted
Subsidiary will create, assume, incur or guarantee any Secured Debt
without effectively providing that Debt Securities (together with, if
Aliant shall so determine, any other Debt of or guaranteed by Aliant
ranking equally with the Debt Securities) shall be secured equally and
ratably with (or, at the option of Aliant, prior to) such Secured Debt,
with certain stated exceptions. These exceptions permit (a) Secured Debt
(i) in respect of Liens on Property existing at the time such Property is
acquired by Aliant or any Restricted Subsidiary, (ii) in respect of Liens
created upon or within 270 days following the acquisition or construction
of Property (including any improvements to existing Property) to secure
the payment of all or part of the purchase or construction price thereof,
or (iii) incurred by Aliant or any Restricted Subsidiary prior to, at the
time of or within 270 days following the acquisition of Property which is
subject to a related Lien, which Secured Debt is incurred for the purpose
of financing all or part of the purchase price thereof, provided that no
such Lien applies to any Property theretofore owned by Aliant or any
Restricted Subsidiary (including Property transferred by Aliant to any
Subsidiary or from any Restricted Subsidiary to Aliant or another
Subsidiary in contemplation of or in connection with the creation of such
Lien) or to any Property of Aliant or any Restricted Subsidiary other than
the Property so acquired (other than, in the case of construction or
improvement, any theretofore unimproved real Property or portion thereof
on which the Property so constructed, or the improvement, is located); (b)
Secured Debt in respect of Liens on Property of a Person (i) existing at
the time such Person is merged into or consolidated with Aliant or any
Restricted Subsidiary or at the time of a sale, lease or other disposition
of the properties of a Person as an entirety or substantially as an
entirety to Aliant or any Restricted Subsidiary, (ii) resulting from such
merger, consolidation, sale, lease or disposition by virtue of any Lien on
Property granted by Aliant or any Restricted Subsidiary prior to such
merger, consolidation, sale, lease or disposition (and not in
contemplation thereof or in connection therewith) which applies to after-
acquired Property of Aliant or any Restricted Subsidiary or (iii)
resulting from such merger, consolidation, sale, lease or disposition
pursuant to a Lien or contractual provision granted or entered into by
such Person prior to such merger, consolidation, sale, lease or
disposition (and not at the request of Aliant); provided, however, that
any such Lien referred to in clause (i) shall not apply to any Property of
Aliant or any Restricted Subsidiary other than the Property subject
thereto at the time such Person or properties were acquired and any such
Lien referred to in clause (ii) or (iii) shall not apply to any Property
of Aliant or any Restricted Subsidiary other than the Property so
acquired; (c) Liens existing at the date of the Indenture; (d) Liens in
favor of a government or governmental entity to secure partial progress,
advance or other payments, or other obligations, or to secure any Debt
incurred for the purpose of financing all or any part of the cost of
acquiring, constructing or improving the Property subject thereto
(including, without limitation, Liens incurred in connection with
industrial revenue, pollution control, private activity bond or similar
financing); (e) Liens arising by reason of deposits with, or the giving of
any form of security to, any governmental agency or any body created or
approved by law or governmental regulation, which Lien is required by law
or governmental regulation as a condition to the transaction of any
business or the exercise of any privilege, franchise, license or permit;
(f) Liens for taxes, assessments or governmental charges or levies not yet
delinquent or governmental charges or levies already delinquent, the
validity of which charge or levy is being contested in good faith and for
which any reserves required in accordance with generally accepted
accounting principles have been established; (g) Judgment liens for which
execution thereon is stayed and for which any reserves required in
accordance with generally accepted accounting principles have been
established; and (h) Secured Debt secured by any extension, renewal or
replacement (or successive extensions, renewals or replacements) of any
Liens referred to in the foregoing clauses (a) to (g), inclusive (provided
that the principal amount of Secured Debt secured thereby does not exceed
the principal amount of such Debt immediately prior to such extension,
renewal or replacement, and that any Lien created in connection therewith
is limited to all or part of the Property (plus improvements to such
Property) which secured the Secured Debt so extended, renewed or
replaced). (Section 3.6)
The foregoing restrictions do not apply if, immediately after the
incurrence of such Secured Debt (giving effect to the application of the
proceeds therefrom), the aggregate principal amount of Secured Debt (other
than Secured Debt described in clauses (a) to (h), inclusive, of the
immediately preceding paragraph), plus the aggregate amount of Capitalized
Rent in respect of Sale and Leaseback Transactions (other than Sale and
Leaseback Transactions the proceeds of which are or will be applied as
described in clauses (a) to (e) inclusive, under "Limitation on Sale and
Leaseback Transactions" below), would not exceed 10% of Consolidated
Capitalization. (Sections 1.1 and 3.6)
Limitation on Sale and Leaseback Transactions. Neither Aliant nor
any Restricted Subsidiary will enter into any Sale and Leaseback
Transaction unless, immediately after the completion of such Sale and
Leaseback Transaction (giving effect to the application of the proceeds
therefrom), the aggregate amount of Capitalized Rent in respect of Sale
and Leaseback Transactions (other than Sale and Leaseback Transactions
described in clauses (a) to (e), inclusive, of the immediately succeeding
paragraph), plus the aggregate principal amount of Secured Debt (other
than Secured Debt described in clauses (a) to (h), inclusive, under
"Limitation on Secured Debt" above), would not exceed 10% of Consolidated
Capitalization. (Section 3.7)
The foregoing restrictions do not apply to, and there shall be excluded
in computing the aggregate amount of Capitalized Rent for the purpose of
such restrictions, the following Sale and Leaseback Transactions: (a) any
Sale and Leaseback Transaction entered into to finance the payment of all
or any part of the purchase price of Property acquired or constructed by
Aliant or any Restricted Subsidiary (including any improvements to
existing Property) or entered into prior to, at the time of or within 270
days after the acquisition or construction of such Property, which Sale
and Leaseback Transaction is entered into for the purpose of financing all
or part of the purchase or construction price thereof; provided, however,
that in the case of any such acquisition, such Sale and Leaseback
Transaction shall not involve any Property transferred by Aliant to a
Subsidiary or by a Restricted Subsidiary to Aliant or to another
Subsidiary thereof in contemplation of or in connection with such Sale and
Leaseback Transaction or involve any Property of Aliant or any Restricted
Subsidiary other than the Property so acquired (other than, in the case of
construction or improvement, any theretofore unimproved real property or
portion thereof on which the Property so constructed, or the improvement,
is located); (b) any Sale and Leaseback Transaction involving Property of
a Person existing at the time such Person is merged into or consolidated
with Aliant or any Restricted Subsidiary or at the time of a sale, lease
or other disposition of the properties of a Person as an entirety or
substantially as an entirety to Aliant or any Restricted Subsidiary; (c)
any Sale and Leaseback Transaction in which the lessor is a government or
governmental entity and which Sale and Leaseback Transaction is entered
into to secure partial progress, advance or other payments, or other
obligations, pursuant to any contract or statute or to secure any Debt
incurred for the purpose of financing all or any part of the cost of
constructing or improving the Property subject to such Sale and Leaseback
Transaction (including, without limitation, Sale and Leaseback
Transactions incurred in connection with pollution control, industrial
revenue, private activity bond or similar financing); (d) any Sale and
Leaseback Transaction involving the extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole or in part, of
a lease pursuant to a Sale and Leaseback Transaction referred to in the
foregoing clauses (a) to (c), inclusive; provided, however, that such
lease extension, renewal or replacement shall be limited to all or any
part of the same Property leased under the lease so extended, renewed or
replaced (plus improvements to such Property); and (e) any Sale and
Leaseback Transaction the net proceeds of which are at least equal to the
fair value (as determined by the Board of Directors of Aliant) of the
Property leased pursuant to such Sale and Leaseback Transaction, so long
as within 270 days of the effective date of such Sale and Leaseback
Transaction, Aliant or any Restricted Subsidiary applies (or irrevocably
commits to an escrow account for the purpose or purposes hereinafter
mentioned) an amount equal to the net proceeds of such Sale and Leaseback
Transaction to either (x) the purchase of other Property having a fair
value at least equal to the fair value of the Property leased in such Sale
and Leaseback Transaction and having a similar utility and function, or
(y) the retirement or repayment (other than any mandatory retirement or
repayment at maturity) of Debt Securities; provided, however, that in lieu
of applying an amount equivalent to all or any part of such net proceeds
to such retirement or repayment (or committing such an amount to an escrow
account for such purpose), Aliant may deliver to the Trustee Outstanding
Securities and thereby reduce the amount to be applied pursuant to (y) of
this clause (e) by an amount equivalent to the aggregate principal amount
of the Debt Securities so delivered. (Section 3.7)
In addition, under the Indenture, Aliant has agreed to certain
other covenants including:
Existence. Except as described above under "Consolidation, Merger
or Sale of Assets", Aliant will be required to do or cause to be done all
things necessary to preserve and kept in full force and effect its
existence, rights (charter and statutory) and franchises; provided,
however, that Aliant shall not be required to preserve any right of
franchise if it determines that the preservation thereof is no longer
desirable in the conduct of its business and that the loss thereof is not
disadvantageous in any material respect to the holders of the Debt
Securities (Section 3.8).
Maintenance of Properties. Aliant will be required to cause all of
its material properties used or useful in the conduct of its business or
the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment
of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times (Section 3.9).
Insurance. Aliant will be required to, and will be required to
cause each of its Subsidiaries to, keep all of its insurable properties
insured against loss or damage at least equal to their then full insurable
value with financially sound and reputable insurers. (Section 3.10).
Payment of Taxes and Other Claims. Aliant will be required to pay
or discharge or cause to be paid or discharged, before the same shall
become delinquent, (a) all taxes, assessments and governmental charges
levied or imposed upon it or any Subsidiary or upon the income, profits or
Property of Aliant or any Subsidiary, and (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon
the Property of Aliant or any Subsidiary; provided, however, that Aliant
shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings (Section 3.11).
Certain Definitions
"Capital Stock" means and includes any and all shares, interests,
participations or other equivalents (however designated) of ownership in a
corporation or other Person.
"Capitalization" means, with respect to a Person, the total of (a)
Funded Debt, (b) the par value or, in the case of Capital Stock with no
par value, a value stated on the books, of all outstanding shares of
Capital Stock, (c) the paid-in surplus and retained earnings (or minus the
net surplus deficit, as the case may be), (d) deferred taxes and deferred
investment tax credits, (e) Capitalized Rent, and (f) minority interests
in subsidiaries of such Person.
"Capitalized Rent" means the present value (discounted semi-
annually at a discount rate equal to the weighted average rate of interest
borne by the Debt Securities then Outstanding) of the total net amount of
rent payable for the remaining term of any lease of Property by Aliant
(including any period for which such lease has been extended); provided,
however, that no such rental obligation shall be deemed to be Capitalized
Rent unless the lease resulted from a Sale and Leaseback Transaction. The
total net amount of rent payable under any lease for any period shall be
the total amount of the rent payable by the lessee with respect to such
period but shall not include amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates, sewer
rates and similar charges.
"Consolidated Capitalization" means the Capitalization of Aliant
and its Subsidiaries, determined on a consolidated basis, at the end of
Aliant's then most recently reported fiscal year or quarter, as the case
may be, including minority interests in Subsidiaries.
"Debt" means, with respect to a Person, all obligations of such
Person for borrowed money which is created, assumed, incurred or
guaranteed in any manner by such Person or for which such Person is
otherwise liable.
"Funded Debt" means any Debt maturing by its terms more than one
year from its date of issuance (notwithstanding that any portion of such
Debt is included in current liabilities).
"Lien" means any mortgage, pledge, security interest, lien, charge
or other encumbrance.
"Outstanding" means, subject to certain exceptions, all Debt
Securities issued under the Indenture, except those theretofore canceled
by the Trustee or delivered to it for cancellation, defeased in accordance
with the Indenture, paid in full, or in respect of which substitute Debt
Securities have been authenticated and delivered by the Trustee.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Property" means any directly-held interest of a Person in any kind
of property or asset, whether real, personal or mixed and whether tangible
or intangible, and includes Capital Stock of a subsidiary or other Person.
"Restricted Subsidiary" means (a) any Subsidiary of the Company
which has substantially all its property in the United States, which owns
or is a lessee of any Property and in which the investment of the Company
and all its Subsidiaries exceeds 2% of Consolidated Capitalization as of
the date of such determination, and (b) any Subsidiary which is designated
by Aliant (evidenced by a resolution of the Board of Directors) to be a
Restricted Subsidiary; provided, however, that Aliant may not designate
any such Subsidiary to be Restricted Subsidiary if Aliant would thereby
breach any covenant or agreement contained in the Indenture (on the
assumption that any transaction to which such Subsidiary was a party at
the time of such designation and which would have given rise to a Secured
Debt, or constituted a Sale and Leaseback Transaction at the time it was
entered into had such Subsidiary then been a Restricted Subsidiary was
entered into at the time of such designation).
"Sale and Leaseback Transaction" means any arrangement with any
Person, providing for the leasing (as lessee) by Aliant or any Restricted
Subsidiary of any Property whether now or hereafter acquired (except for
temporary leases for a term, including any renewal thereof, of not more
than three years), which Property has been or is to be sold or transferred
by Aliant or such Restricted Subsidiary (i) to any Subsidiary in
contemplation of or in connection with such arrangement; or (ii) to such
other Person.
"Secured Debt" means Debt of Aliant or any Restricted Subsidiary
secured by any Lien on Property (including Capital Stock or indebtedness
of Subsidiaries) owned by Aliant or any Restricted Subsidiary.
"Subsidiary" means a Person which is consolidated with Aliant in
accordance with generally accepted accounting principles.
Events of Default
The occurrence of any of the following events with respect to the
Debt Securities of any series will constitute an "Event of Default" with
respect to the Debt Securities of such series: (a) default for 30 days in
the payment of any interest on any of the Debt Securities of such series;
(b) default in the payment of any of the principal of or the premium, if
any, on any of the Debt Securities of such series, whether at maturity,
upon redemption, by declaration or otherwise; (c) default in the deposit
of any sinking fund payment in respect of any Debt Securities of such
series; (d) default for 90 days by Aliant in the observance or performance
of any other covenant or agreement contained in the Indenture relating to
the Debt Securities of such series after written notice thereof as
provided in the Indenture; (e) (i) an event of default occurs under any
instrument under which there is outstanding, or by which there may be
secured or evidenced, any indebtedness of Aliant or any Restricted
Subsidiary for money borrowed (other than non-recourse indebtedness) which
results in acceleration of, or non-payment at maturity (after giving
effect to any applicable grace period) of such indebtedness in an
aggregate amount exceeding the greater of $10,000,000 or 10% of
Consolidated Capitalization, in which case Aliant shall immediately give
notice to the Trustee of such acceleration or non-payment, and (ii) there
shall have been a failure to cure such default or to discharge such
indebtedness within ten days after notice thereof to Aliant by the Trustee
or to Aliant and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Debt Securities then Outstanding; or (f) certain
events of bankruptcy, insolvency or reorganization relating to Aliant.
(Section 5.1) Different Events of Default may be prescribed for the
benefit of the Holders of a particular series of Debt Securities and will
be described in the Prospectus Supplement relating thereto.
If an Event of Default due to a default in the payment of the
principal of or the premium or interest, if any, on, or in the deposit of
any sinking fund payment with respect to, any series of Debt Securities
shall have occurred and be continuing, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Debt Securities
of such series then Outstanding may declare the principal of all Debt
Securities of such series and the interest, if any, accrued thereon to be
due and payable immediately. If an Event of Default due to a default in
the observance or performance of any other covenant or agreement of Aliant
contained in the Indenture and applicable to the Debt Securities of one or
more (but less than all) series then outstanding shall have occurred and
be continuing, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Debt Securities of the affected series
then Outstanding (voting as one class) may declare the principal of all
Debt Securities of each such affected series and the interest, if any,
accrued thereon to be due and payable immediately. If an Event of Default
due to a default in the observance or performance of any other covenant or
agreement of Aliant contained in the Indenture applicable to all Debt
Securities then Outstanding or due to the acceleration or non-payment at
maturity of certain indebtedness of Aliant shall have occurred and be
continuing, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of all Debt Securities then Outstanding (voting
as one class) may declare the principal of all Debt Securities and the
interest, if any, accrued thereon to be due and payable immediately. If
an Event of Default due to certain acts of bankruptcy, insolvency or
reorganization of Aliant or any Significant Subsidiary shall have occurred
and be continuing, the principal and interest on all the Debt Securities
then Outstanding shall thereby become and be immediately due and payable,
without any declaration or other act on the part of the Trustee or any
Securityholders. Upon certain conditions, any such declarations may be
rescinded and annulled if all Events of Default, other than the nonpayment
of accelerated principal, with respect to the Debt Securities of all such
affected series then Outstanding shall have been cured or waived as
provided in the Indenture by the Holders of a majority in aggregate
principal amount of the Debt Securities of the affected series then
Outstanding (voting as one class, except in the case of Events of Default
described in clauses (a), (b) and (c) of the preceding paragraph, as to
which each series so affected will vote as a separate class). See
"Modification of the Indenture" below. Reference is made to the
Prospectus Supplement relating to any series of Original Issue Discount
Securities for the particular provisions relating to the acceleration of a
portion of the principal amount thereof upon the occurrence and
continuance of an Event of Default with respect thereto. (Section 5.1)
The Indenture provides that, subject to the duty of the Trustee to
act with the requisite standard of care, in case a default with respect to
a series of Debt Securities shall have occurred and be continuing, the
Trustee will be under no obligation to exercise any of its rights or
powers under the Indenture at the request, order or direction of the
Holders of the Debt Securities, unless such Holders shall have offered to
the Trustee reasonable indemnity. (Sections 5.6 and 6.2) Subject to such
provisions for indemnity and certain other limitations contained in the
Indenture, the Holders of a majority in aggregate principal amount of the
Debt Securities of each affected 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, with respect to the Debt Securities of such
affected series. (Section 5.9)
The Indenture provides that no Holder of Securities may institute
any action against Aliant under the Indenture (except actions for payment
of overdue principal, premium or interest) unless such Holder previously
shall have given to the Trustee written notice of default and continuance
thereof and unless the Holders of not less than 25% in aggregate principal
amount of the Debt Securities of the affected series then Outstanding
(voting as one class) shall have requested the Trustee to institute such
action and shall have offered the Trustee reasonable indemnity, the
Trustee shall not have instituted such action within 60 days of such
request and the Trustee shall not have received direction inconsistent
with such request by the Holders of a majority in aggregate principal
amount of the Debt Securities of the affected series then Outstanding
(voting as one class). (Sections 5.6 and 5.9)
Consolidation, Merger or Sale of Assets
Aliant may consolidate with or merge into, or sell, lease or convey
its Property as an entirety or substantially as an entirety to, any other
entity if (a) such entity assumes the obligations of Aliant under the Debt
Securities and the Indenture; (b) such entity is organized and existing
under the laws of the United States or any state thereof or the District
of Columbia; (c) upon request by the Trustee, Aliant delivers to the
Trustee certain certificates and opinions specified in the Indenture; (d)
immediately after giving effect to such transaction (and treating any
Secured Debt or Sale and Leaseback Transaction which becomes an obligation
of the resulting, surviving or transferee Person as a result of such
transaction as having been incurred or entered into by such Person at the
time of such transaction), no Event of Default (or event which, after
notice or lapse of time or both, would be an Event of Default) shall exist
and (e) upon such consolidation, merger, sale, lease or conveyance any
Property owned by Aliant or any Restricted Subsidiary immediately prior
thereto would become subject to any Lien (unless such Lien would be
permitted by the provisions described above under "Limitation on Secured
Debt"), the Debt Securities must be secured (together with, if Aliant
shall so determine, any other Debt ranking on a parity with or prior to
the Debt Securities incurred, assumed or guaranteed by Aliant, whether
then or thereafter existing) by a direct Lien on such Property prior to
all Liens other than any theretofore existing thereon. (Sections 9.1 and
9.2). The covenant phrase "substantially as an entirety" is not defined
in the Indenture, and Aliant is unaware of an established meaning or
quantification of the phrase under New York law, which is the law
governing construction of the Indenture. A Holder may bear the burden of
establishing the meaning of the phrase "substantially as an entirety."
Modification of the Indenture
The Indenture permits Aliant and the Trustee to enter into
supplemental indentures without the consent of the Holders of the Debt
Securities to: (a) subject to compliance with Aliant's covenants described
above under "Certain Covenants of Aliant-Limitation on Secured Debt",
secure the Debt Securities of one or more series, (b) add guaranties with
respect to the Debt Securities of one or more series, (c) evidence the
assumption by a successor Person of the obligations of Aliant under the
Indenture and the Debt Securities then Outstanding, (d) add covenants for
the protection of the Holders of the Debt Securities, (e) cure any
ambiguity or correct any inconsistency in the Indenture, provided that no
such action shall adversely affect the interests of the Holders of the
Debt Securities of any series, (f) establish the form and terms of the
Debt Securities of any series, (g) evidence the acceptance of appointment
by a successor Trustee, (h) subject to compliance with certain
requirements of the Indenture, provide for uncertificated Securities in
addition to or in place of certificated Securities and (i) comply with any
requirements of the Commission in connection with qualifying the Indenture
under the Trust Indenture Act of 1939, as amended. (Section 8.1)
The Indenture also permits Aliant and the Trustee, with the consent
of the Holders of not less than a majority in aggregate principal amount
of the Debt Securities of all series then Outstanding and affected (voting
as one class), to add any provisions to, or change in any manner or
eliminate any of the provisions of, the Indenture or modify in any manner
the rights of the Holders of the Debt Securities of each such affected
series; provided, however, that Aliant and the Trustee may not, without
the consent of the Holder of each Security then Outstanding and affected
thereby: (a) extend the time of payment of the principal (or any
installment) of any Security, or reduce the principal amount thereof, or
reduce the rate, alter the method of computation of the rate or extend the
time of payment of interest thereon, or reduce any amount payable on the
redemption thereof, or change the currency in which the principal thereof
or the interest thereon is payable, or reduce the amount payable on any
Original Issue Discount Security upon acceleration or provable in
bankruptcy, or alter certain provisions of the Indenture relating to
Securities not denominated in United States dollars, or impair the right
to institute suit for the enforcement of any payment on any Security when
due; or (b) reduce the percentage in principal amount of the Debt
Securities of the affected series, the consent of whose Holders is
required for any such modification or for any waiver provided for in the
Indenture. (Section 8.2)
Prior to the acceleration of the maturity of any Debt Securities,
the Holders of a majority in aggregate principal amount of the Debt
Securities of all series at the time Outstanding with respect to which a
default or an Event of Default shall have occurred and be continuing
(voting as one class) may, on behalf of the Holders of all such affected
Securities, waive any past default or Event of Default and its
consequences, except a default or an Event of Default in respect of a
covenant or provision of the Indenture or of any Security which cannot be
modified or amended without the consent of the Holder of each Security
affected.
Defeasance and Discharge
The Indenture provides that, at the option of Aliant, (a) Aliant
will be discharged from any and all obligations in respect of the Debt
Securities of a particular series then Outstanding (except for certain
obligations to register the transfer of or exchange the Debt Securities of
such series, to replace stolen, lost or mutilated Securities of such
series, to maintain paying agencies, in the event that the Trustee is not
the Security Registrar, to furnish the Trustee with the names and
addresses of the Holders of Registered Securities of each series, to cause
any successor Person substituted for Aliant in accordance with the
Indenture to assume Aliant's obligations thereunder and with respect to
the Securities, to comply with certain covenants described under
"Consolidation, Merger or Sale of Assets" and to maintain the trust
described below), or (b) Aliant need not comply with certain covenants of
the Indenture (including certain of those described under "Certain
Covenants of Aliant" and "Consolidation, Merger or Sale of Assets"), in
each case if Aliant irrevocably deposits in trust with the Trustee money,
and/or securities of the government which issued the currency in which the
Debt Securities of such series are payable or securities backed by the
full faith and credit of such government which, through the payment of the
principal thereof and the interest thereon in accordance with their terms,
will provide money in an amount sufficient to pay all the principal of
(and premium, if any) and interest on the Debt Securities of such series
on the stated maturity of such Securities in accordance with the terms
thereof. To exercise such option, Aliant is required, among other things,
to deliver to the Trustee an opinion of independent counsel of nationally
recognized standing in matters of federal income tax law to the effect
that the exercise of such option would not cause the Holders of the Debt
Securities of such series to recognize income, gain or loss for United
States federal income tax purposes as a result of such defeasance, and
such Holders will be subject to United States federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred, and, in the case of a
discharge as described in clause (a) of the preceding sentence, such
opinion states that either (A) there has been a change in the applicable
federal income tax law to the foregoing effect or (B) Aliant has received
a private letter ruling from the Internal Revenue Service or there has
been published a revenue ruling to the foregoing effect. (Section 10.1)
In the event Aliant exercises its option to effect a covenant
defeasance with respect to the Debt Securities of any series as described
in the preceding paragraph and the Debt Securities of such series are
thereafter declared due and payable because of the occurrence of any Event
of Default other than an Event of Default caused by failing to comply with
the covenants which are defeased, and the amount of money and securities
on deposit with the Trustee would be insufficient to pay amounts due on
the Debt Securities of such series at the time of their accelerated
maturity, Aliant would remain liable for such amounts.
If the Trustee or paying agent is unable to apply any money or
Government Obligation in accordance with the foregoing provisions by
reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, Aliant's obligations under the Indenture and
the Debt Securities shall be revived and reinstated as though no deposit
had occurred pursuant to such provisions until such time as the Trustee or
paying agent is permitted to apply all such money or Government
Obligations in accordance therewith; provided, however, that, if Aliant
has made any payment of interest on or principal of any Debt Securities
because of the reinstatement of its obligations, Aliant shall be entitled,
at its election, (a) to receive from the Trustee or paying agent, as
applicable, that portion of such money or Government Obligations equal to
the amount of such payment or (b) to be subrogated to the rights of the
Holders of such Securities to receive such payment from the money or
Government Obligations held by the Trustee or paying agent.
Redemption of Debt Securities
The Indenture provides that the Debt Securities may be redeemed at
any time at the option of Aliant, in whole or in part, at such price as
provided for in the Indenture or any indentures supplemental thereto (the
"Redemption Price").
From and after notice has been given as provided in the Indenture,
if funds for the redemption of any Debt Securities called for redemption
shall have been made available on such redemption date, such Debt
Securities will cease to bear interest on the date fixed for such
redemption specified in such notice, and the only right of the holders of
the Debt Securities will be to receive payment of the Redemption Price.
Notice of any optional redemption of any Debt Securities will be
given to Holders at their addresses, as shown in the Security Register,
not more than 60 nor less than 30 days prior to the date fixed for
redemption. The notice of redemption will specify, among other items, the
Redemption Price and the principal amount of the Debt Securities held by
such holder to be redeemed.
If Aliant elects to redeem Debt Securities, it will notify the
Trustee at least 45 days prior to the redemption date (or such shorter
period as satisfactory to the Trustee) of the aggregate principal amount
of Debt Securities to be redeemed and the redemption date. If less than
all the Debt Securities are to be redeemed, the Trustee shall select the
Debt Securities to be redeemed pro rata, by lot or in such manner as it
shall deem fair and appropriate.
Governing Law
The Indenture and the Debt Securities issued thereunder will be
governed by the laws of the State of New York.
Concerning the Trustee
U.S. Bank National Association, the trustee under the Indenture, is
one of a number of banks with which Aliant and its subsidiaries maintain
ordinary banking relationships.
PLAN OF DISTRIBUTION
Aliant may sell Debt Securities being offered hereby: (i) directly
to purchasers, (ii) through agents, (iii) through underwriters or dealers,
or (iv) through a combination of any such methods of sale.
The Prospectus Supplement relating to the particular series of Debt
Securities offered thereby will set forth the terms of the offering of
such series of Debt Securities, including the name or names of any
underwriters, dealers or agents, the purchase price of such Debt
Securities, the proceeds to the Company from such sale, any underwriting
discounts and other items constituting underwriters' or agents'
compensation, any initial public offering price, any discounts or sales
agent commissions or concessions allowed or reallowed or paid to dealers
and any securities exchanges on which the Debt Securities of such series
may be listed.
The distribution of the Debt Securities may be effected from time
to time in one or more transactions at a fixed price or prices, which may
be changed, or at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
Offers to purchase Debt Securities may be solicited by agents
designated by Aliant from time to time. Any such agent, who may be deemed
to be an underwriter as that term is defined in the Securities Act,
involved in the offer or sale of the Debt Securities in respect of which
this Prospectus is delivered will be named, and any commissions payable by
Aliant to such agent will be set forth, in the Prospectus Supplement.
Unless otherwise indicated in the Prospectus Supplement, any such agent
will be acting on a best efforts basis for the period of its appointment.
If underwriters are utilized in the sale, Aliant will execute an
underwriting agreement with such underwriters at the time of sale to them
and the names of the underwriters and the terms of the transaction will be
set forth in the Prospectus Supplement, which will be used by the
underwriters to make resales of the Debt Securities in respect of which
this Prospectus is delivered to the public. Any underwriters will acquire
Debt Securities for their own account and may resell such Debt Securities
from time to time in one or more transactions, including negotiated
transactions, at fixed public offering prices or at varying prices
determined at the time of sale. Debt Securities may be offered to the
public either through underwriting syndicates represented by managing
underwriters, or directly by the managing underwriters. Only underwriters
named in the Prospectus Supplement are deemed to be underwriters in
connection with the Debt Securities offered thereby. If any underwriters
are utilized in the sale of the Debt Securities, the underwriting
agreement will provide that the obligations of the underwriters are
subject to certain conditions precedent and that the underwriters with
respect to a sale of Debt Securities will be obligated to purchase all
such Debt Securities, if any are purchased. Any initial public offering
price or concession allowed or reallowed or paid to dealers may be changed
from time to time.
If a dealer is utilized in the sale of the Debt Securities in
respect of which this Prospectus is delivered, Aliant will sell such Debt
Securities to the dealer, as principal. The dealer may then resell such
Debt Securities to the public at varying prices to be determined by such
dealer at the time of resale.
Agents, underwriters and dealers may be entitled, under
agreements entered into with Aliant, to indemnification by Aliant against
certain civil liabilities, including liabilities under the Securities Act,
or to contribution with respect to payments which the agents, underwriters
or dealers may be required to make in respect thereof. Agents,
underwriters and dealers may be customers of, engage in transactions with,
or perform services for Aliant in the ordinary course of business.
Offers to purchase Debt Securities may be solicited directly by
Aliant and sales thereof may be made by Aliant directly to institutional
investors or others. The terms of any such sales will be described in the
Prospectus Supplement relating thereto.
If so indicated in the Prospectus Supplement, Aliant will authorize
agents and underwriters to solicit offers by certain institutions to
purchase Debt Securities from Aliant at the public offering price set
forth in the Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date stated in the
Prospectus Supplement. Each Contract will be for an amount not less than,
and unless Aliant otherwise agrees the aggregate principal amount of Debt
Securities sold pursuant to Contracts shall be not less nor more than, the
respective amounts stated in the Prospectus Supplement. Institutions with
whom Contracts, when authorized, may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and other institutions, but shall
in all cases be subject to the approval of Aliant. Contracts will not be
subject to any conditions except as set forth in the Prospectus
Supplement. A commission indicated in the Prospectus Supplement will be
paid to underwriters and agents soliciting purchases of Debt Securities
pursuant to Contracts accepted by Aliant.
The place and time of delivery for the Debt Securities in
respect of which this Prospectus is delivered are set forth in the
accompanying Prospectus Supplement.
LEGAL MATTERS
Certain legal matters with respect to the Debt Securities of
the Company offered hereunder will be passed upon by Foley & Lardner,
Milwaukee, Wisconsin.
EXPERTS
The audited consolidated financial statements of Aliant
Communications Inc. incorporated by reference in this Prospectus have been
audited by KPMG Peat Marwick LLP, independent public accountants, as
indicated in their reports incorporated by reference herein. Such
financial statements have been incorporated by reference in reliance on
the reports of KPMG Peat Marwick LLP, given on the authority of such firm
as experts in auditing and accounting in giving said reports.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is a statement of estimated expenses to be paid by the
Registrant in connection with the issuance and distribution of the
securities being registered hereby:
Securities and Exchange Commission registration fee . . . . $ 73,750
Rating agency fees . . . . . . . . . . . . . . . . . . . . . $182,000
Fees and expenses of trustee . . . . . . . . . . . . . . . . $ 9,000
Legal fees and expenses . . . . . . . . . . . . . . . . . . $ 70,000
Accounting fees and expenses . . . . . . . . . . . . . . . . $ 30,000
Printing . . . . . . . . . . . . . . . . . . . . . . . . . . $ 50,000
Miscellaneous expenses . . . . . . . . . . . . . . . . . . . $ 10,250
-------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $425,000
=======
__________________________________
* Estimated
Item 15. Indemnification of Directors and Officers.
Pursuant to the provisions of Sections 21-20,102 through 21-20,111 of
the Nebraska Business Corporation Act, the Company has the power to
indemnify certain persons, including its officers and directors under
stated circumstances and subject to certain limitations, for liabilities
incurred in connection with services performed in good faith and in a
manner reasonably believed to be in or not opposed to the best interests
of the Company. By resolution of Company's Board of Directors pursuant to
Article VI of the Amended and Restated By-laws of the Company, by
contractual agreement and pursuant to certain provisions of an insurance
policy, the Company has provided for indemnification of officers and
directors of the Company and certain other persons, against liabilities
and expenses incurred by any of them in certain stated conditions.
Insofar as indemnification for liabilities under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that, in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as
expressed in said Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director,
officer, or controlling person of the Company in the successful defense of
any such action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered,
the Company 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 any final
adjudication of such issue.
Item 16. Exhibits.
The exhibits filed herewith or incorporated by reference herein are
set forth and incorporated herein from the attached Exhibit Index.
Item 17. Undertakings.
(a) The Registrant hereby undertakes as follows:
(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 the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not
exceed that which was registered) and any deviation from
the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 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 the Registration Statement or any material
change to such information in the 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 with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to 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.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Act.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Lincoln, State
of Nebraska, as of February 23, 1998.
ALIANT COMMUNICATIONS INC.
By: /s/ FRANK H. HILSABECK
Frank H. Hilsabeck
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities indicated as of February 23, 1998. Each person whose
signature appears below constitutes and appoints Frank H. Hilsabeck,
Robert L. Tyler and Michael J. Tavlin, and each of them individually, his
or her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her 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 other documents in
connection therewith, with the Securities and Exchange Commission,
granting unto each 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 as he or she might or could do in person,
hereby ratifying and confirming all that each said attorney-in-fact and
agent may lawfully do or cause to be done by virtue hereof.
Signature Title
/s/ FRANK H. HILSABECK President and Chief Executive
Frank H. Hilsabeck Officer and Director (Principal
Executive Officer)
/s/ ROBERT L. TYLER Senior Vice President and Chief
Robert L. Tyler Financial Officer (Principal
Financial and Accounting Officer)
/s/ DUANE W. ACKLIE Director
Duane W. Acklie
/s/ WILLIAM W. COOK, JR. Director
William W. Cook, Jr.
/s/ TERRY L. FAIRFIELD Director
Terry L. Fairfield
/s/ JOHN HAESSLER Director
John Haessler
/s/ CHARLES R. HERMES Director
Charles R. Hermes
/s/ PAUL C. SCHORR, III Director
Paul C. Schorr, III
/s/ WILLIAM C. SMITH Director
William C. Smith
/s/ JAMES W. STRAND Director
James W. Strand
/s/ CHARLES N. WHEATLEY Director
Charles N. Wheatley
/s/ THOMAS C. WOODS, III Director
Thomas C. Woods, III
/s/ LYN WALLIN ZIEGENBEIN Director
Lyn Wallin Ziegenbein
<PAGE>
EXHIBIT INDEX
Exhibit
Number Document Description
1 Form of Underwriting Agreement. Filed herewith.
4.1 Form of Indenture between the Company and U.S. Bank
National Association. Filed herewith.
4.2 Articles of Incorporation. Incorporated by reference
to Exhibit 3 to the Company's Registration Statement
on Form S-3 (Reg. No. 33-21557).
4.3 Amended and Restated By-laws. Filed herewith.
4.4 Rights Agreement, dated as of June 21, 1989, between the
Company and Harris Trust and Savings Bank. Incorporated by
reference to Exhibit 4.1 to Registrant's Current Report on
Form 8-K dated June 21, 1989.
4.5 Amendment to Rights Agreement, dated as of September 7,
1989, between the Company and Harris Trust and Savings
Bank. Incorporated by reference to Exhibit 4.2 to
Registrant's Current Report on Form 8-K dated September 7,
1989.
4.6 Amendment No. 2 to Rights Agreement, dated June 15, 1993,
between the Company and Harris Trust and Savings Bank.
Incorporated by reference to Exhibit 4.5 to Registrant's
Form S-3 Registration Statement (Reg. No. 33-52117).
5 Opinion of Foley & Lardner. Filed herewith.
23.1 Consent of Foley & Lardner (included in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP. Filed herewith.
24 Powers of Attorney (contained on the signature page of this
Registration Statement).
25 Statement of Eligibility of Trustee. Filed herewith.
UNDERWRITING AGREEMENT
February __, 1998
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. Representations and Warranties . . . . . . . . . . . . . 4
SECTION 2. Sale and Delivery to Underwriters;
Closing . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3. Covenants of the Company . . . . . . . . . . . . . . . . 20
SECTION 4. Payment of Expenses . . . . . . . . . . . . . . . . . . 24
SECTION 5. Conditions of Underwriters'
Obligations . . . . . . . . . . . . . . . . . . . . . 25
SECTION 6. Indemnification . . . . . . . . . . . . . . . . . . . . 30
SECTION 7. Contribution . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 9. Termination . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 10. Default by One or More of the
Underwriters . . . . . . . . . . . . . . . . . . . . 36
SECTION 11. Notices . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 12. Parties . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 13. Governing Law And Time . . . . . . . . . . . . . . . . . 38
SECTION 14. Effect of Headings . . . . . . . . . . . . . . . . . . . 38
<PAGE>
PRELIMINARY DRAFT
ALIANT COMMUNICATIONS INC.
(a Nebraska corporation)
UNDERWRITING AGREEMENT
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Aliant Communications Inc., a Nebraska corporation (the
"Company"), proposes to issue and sell up to $[ ] aggregate initial
public offering price of its senior debt securities (the "Debt
Securities"), from time to time, in or pursuant to one or more offerings
on terms to be determined at the time of sale.
The Debt Securities will be issued in one or more series under
an indenture, dated as of (the "Indenture"), between the Company
and , as trustee (the "Trustee"). Each series of Debt Securities
may vary as to title, aggregate principal amount, rank, interest rate or
formula and timing of payments thereof, stated maturity date, redemption
and/or repayment provisions, sinking fund requirements and any other
variable terms established by or pursuant to the Indenture.
Whenever the Company determines to make an offering of Debt
Securities through Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch"), or through an underwriting syndicate
managed by Merrill Lynch, the Company will enter into an agreement (each,
a "Terms Agreement") providing for the sale of such Debt Securities to,
and the purchase and offering thereof by, Merrill Lynch and such other
underwriters, if any, selected by Merrill Lynch (the "Underwriters", which
term shall include Merrill Lynch, whether acting as sole Underwriter or as
a member of an underwriting syndicate, as well as any Underwriter
substituted pursuant to Section 10 hereof). The Terms Agreement relating
to the offering of Debt Securities shall specify the aggregate principal
amount of Debt Securities to be initially issued (the "Initial
Underwritten Debt Securities"), the name of each Underwriter participating
in such offering (subject to substitution as provided in Section 10
hereof) and the name of any Underwriter other than Merrill Lynch acting as
co-manager in connection with such offering, the aggregate principal
amount of Initial Underwritten Debt Securities which each such Underwriter
severally agrees to purchase, whether such offering is on a fixed or
variable price basis and, if on a fixed price basis, the initial offering
price, the price at which the Initial Underwritten Debt Securities are to
be purchased by the Underwriters, the form, time, date and place of
delivery and payment of the Initial Underwritten Debt Securities and any
other material variable terms of the Initial Underwritten Debt Securities.
In addition, if applicable, such Terms Agreement shall specify whether the
Company has agreed to grant to the Underwriters an option to purchase
additional Debt Securities to cover over-allotments, if any, and the
number or aggregate principal amount, as the case may be, of Debt
Securities subject to such option (the "Option Underwritten Debt
Securities"). As used herein, the term "Underwritten Debt Securities"
shall include the Initial Underwritten Debt Securities and all or any
portion of any Option Underwritten Debt Securities. The Terms Agreement,
which shall be substantially in the form of Exhibit A hereto, may take the
form of an exchange of any standard form of written telecommunication
between the Company and Merrill Lynch, acting for itself and, if
applicable, as representative of any other Underwriters. Each offering of
Underwritten Debt Securities through Merrill Lynch as sole Underwriter or
through an underwriting syndicate managed by Merrill Lynch will be
governed by this Underwriting Agreement, as supplemented by the applicable
Terms Agreement.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333- ) for the registration of the Debt Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Company has filed such post-effective amendments
thereto as may be required prior to the execution of the applicable Terms
Agreement. Such registration statement (as so amended, if applicable) has
been declared effective by the Commission and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statement (as so amended, if applicable),
including the information, if any, deemed to be a part thereof pursuant to
Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A Information") or
Rule 434(d) of the 1933 Act Regulations (the "Rule 434 Information"), is
referred to herein as the "Registration Statement"; and the final
prospectus and the final prospectus supplement relating to the offering of
the Underwritten Debt Securities, in the form first furnished to the
Underwriters by the Company for use in connection with the offering of the
Underwritten Debt Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all
documents incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to the execution
of the applicable Terms Agreement; provided, further, that if the Company
files a registration statement with the Commission pursuant to Rule 462(b)
of the 1933 Act Regulations (the "Rule 462 Registration Statement"), then,
after such filing, all references to "Registration Statement" shall also
be deemed to include the Rule 462 Registration Statement; and provided,
further, that if the Company elects to rely upon Rule 434 of the 1933 Act
Regulations, then all references to "Prospectus" shall also be deemed to
include the final or preliminary prospectus and the applicable term sheet
or abbreviated term sheet (the "Term Sheet"), as the case may be, in the
form first furnished to the Underwriters by the Company in reliance upon
Rule 434 of the 1933 Act Regulations, and all references in this
Underwriting Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. A "preliminary prospectus" shall be deemed to refer to
any prospectus used before the registration statement became effective and
any prospectus that omitted, as applicable, the Rule 430A Information, the
Rule 434 Information or other information to be included upon pricing in a
form of prospectus filed with the Commission pursuant to Rule 424(b) of
the 1933 Act Regulations, that was used after such effectiveness and prior
to the execution and delivery of the applicable Terms Agreement. For
purposes of this Underwriting Agreement, all references to the
Registration Statement, Prospectus, Term Sheet or preliminary prospectus
or to any amendment or supplement to any of the foregoing shall be deemed
to include any copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial
statements and schedules and other information which is "contained,"
"included" or "stated" (or other references of like import) in the
Registration Statement, Prospectus or preliminary prospectus shall be
deemed to mean and include all such financial statements and schedules and
other information which is incorporated by reference in the Registration
Statement, Prospectus or preliminary prospectus, as the case may be; and
all references in this Underwriting Agreement to amendments or supplements
to the Registration Statement, Prospectus or preliminary prospectus shall
be deemed to mean and include the filing of any document under the 1934
Act which is incorporated by reference in the Registration Statement,
Prospectus or preliminary prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to Merrill Lynch, as of the date hereof, and to
each Underwriter named in the applicable Terms Agreement, as of the date
thereof, as of the Closing Time (as defined below) and, if applicable, as
of each Date of Delivery (as defined below) (in each case, a
"Representation Date"), as follows:
(1) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the
1933 Act. Each of the Registration Statement and any Rule
462(b) Registration Statement has become effective under the
1933 Act and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement
has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge
of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information
has been complied with. In addition, the Indenture has been
duly qualified under the 1939 Act.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto (including the filing of the Company's most recent Annual
Report on Form 10-K with the Commission (the "Annual Report on Form
10-K")) became effective and at each Representation Date, the
Registration Statement, any Rule 462(b) Registration Statement and
any amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act and the rules and regulations
of the Commission under the 1939 Act (the "1939 Act Regulations") and
did not and will not contain an 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
of the Prospectus, at the Closing Time and at each Date of Delivery,
if any, the Prospectus and any amendments and supplements thereto did
not and will not include an 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. If the Company elects to rely upon
Rule 434 of the 1933 Act Regulations, the Company will comply with
the requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through
Merrill Lynch expressly for use in the Registration Statement or the
Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with the offering
of Underwritten Debt Securities will, at the time of such delivery,
be identical to any electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, when they became effective or at
the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of
the Commission thereunder (the "1934 Act Regulations") and, when
read together with the other information in the Prospectus, at
the date of the Prospectus, at the Closing Time and at each Date
of Delivery, if any, did not and will not include an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(3) Independent Accountants. The accountants who
certified the financial statements and any supporting schedules
thereto included in the Registration Statement and the
Prospectus are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the
Company included in the Registration Statement and the
Prospectus, together with the related schedules and notes, as
well as those financial statements, schedules and notes of any
other entity included therein, present fairly the financial
position of the Company and its consolidated subsidiaries, or
such other entity, as the case may be, at the dates indicated
and the statement of operations, stockholders' equity and cash
flows of the Company and its consolidated subsidiaries, or such
other entity, as the case may be, for the periods specified.
Such financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration
Statement and the Prospectus present fairly in accordance with
GAAP the information required to be stated therein. The
selected financial data and the summary financial information
included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that
of the audited financial statements included in the Registration
Statement and the Prospectus. In addition, any pro forma
financial statements of the Company and its subsidiaries and the
related notes thereto included in the Registration Statement and
the Prospectus present fairly the information shown therein,
have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and
have been properly compiled on the bases described therein, and
the assumptions used in the preparation thereof are reasonable
and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(5) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those arising
in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise and (C) except for regular dividends on the Company's
common stock or preferred stock, in amounts per share that are
consistent with past practice or the applicable charter document
or supplement thereto, respectively, there has been no dividend
or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(6) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Nebraska and has
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under,
or as contemplated under, this Underwriting Agreement and the
applicable Terms Agreement. The Company is duly qualified as a
foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to
so qualify or be in good standing would not result in a Material
Adverse Effect.
(7) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02
of Regulation S-X promulgated under the 1933 Act, each a
"Subsidiary" and collectively, the "Subsidiaries"), has been
duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect. Except
as otherwise stated in the Registration Statement and the
Prospectus, all of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and is validly issued,
fully paid and nonassessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
None of the outstanding shares of capital stock of any
Subsidiary was issued in violation of preemptive or other
similar rights of any securityholder of such Subsidiary.
(8) Capitalization. If the Prospectus contains a
"Capitalization" section, the authorized, issued and outstanding
shares of capital stock of the Company is as set forth in the
column entitled "Actual" under such section (except for
subsequent issuances thereof, if any, contemplated under this
Underwriting Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant
to the exercise of convertible securities or options referred to
in the Prospectus). Such shares of capital stock have been duly
authorized and validly issued by the Company and are fully paid
and nonassessable, and none of such shares of capital stock was
issued in violation of preemptive or other similar rights of any
securityholder of the Company.
(9) Authorization of this Underwriting Agreement and Terms
Agreement. This Underwriting Agreement has been, and the
applicable Terms Agreement as of the date thereof will have
been, duly authorized, executed and delivered by the Company.
(10) Authorization of Debt Securities. The Underwritten
Debt Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for
issuance and sale pursuant to this Underwriting Agreement and
such Terms Agreement. Such Underwritten Debt Securities, when
issued and authenticated in the manner provided for in the
Indenture and delivered against payment of the consideration
therefor specified in such Terms Agreement, will constitute
valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by
general equitable principles, and except further as enforcement
thereof may be limited by (A) requirements that a claim with
respect to any Debt Securities denominated other than in U.S.
dollars (or a foreign or composite currency judgment in respect
of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable
law or (B) governmental authority to limit, delay or prohibit
the making of payments outside the United States. Such
Underwritten Debt Securities will be in the form contemplated
by, and each registered holder thereof is entitled to the
benefits of, the Indenture.
(11) Authorization of the Indenture. The Indenture has
been, or prior to the issuance of the Debt Securities thereunder
will have been, duly authorized, executed and delivered by the
Company and, upon such authorization, execution and delivery,
will constitute a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
(12) Descriptions of the Underwritten Debt Securities and
the Indenture. The Underwritten Debt Securities being sold
pursuant to the applicable Terms Agreement and the Indenture as
of the date of the Prospectus when issued and delivered in
accordance with the terms of the related Underwritten Debt
Securities, will conform in all material respects to the
statements relating thereto contained in the Prospectus and will
be in substantially the form filed or incorporated by reference,
as the case may be, as an exhibit to the Registration Statement.
(13) Absence of Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is in violation of its
charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, "Agreements and
Instruments"), except for such defaults that would not result in
a Material Adverse Effect. The execution, delivery and
performance of this Underwriting Agreement, the applicable Terms
Agreement and the Indenture and any other agreement or
instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions
contemplated hereby or thereby or in the Registration Statement
and the Prospectus and the consummation of the transactions
contemplated herein and in the Registration Statement and the
Prospectus (including the issuance and sale of the Underwritten
Debt Securities and the use of the proceeds from the sale of the
Underwritten Debt Securities as described under the caption "Use
of Proceeds") and compliance by the Company with its obligations
hereunder and thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with
or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets,
properties or operations of the Company or any of its
subsidiaries pursuant to, any Agreements and Instruments (except
for such conflicts, breaches, defaults, events or liens, charges
or encumbrances that would not result in a Material Adverse
Effect) nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of
its subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any
of their assets, properties or operations. As used herein, a
"Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any of its
subsidiaries.
(14) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or,
to the knowledge of the Company, is imminent, and the Company is
not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case,
may reasonably be expected to result in a Material Adverse
Effect.
(15) Absence of Proceedings. There is not pending or
threatened any action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental
agency or body, domestic or foreign, including but not limited
to the Federal Communications Commission ("FCC") or the Nebraska
Public Service Commission ("NPSC") now pending, or to the
knowledge of the Company threatened, against or affecting the
Company or any of its subsidiaries which is required to be
disclosed in the Registration Statement and the Prospectus
(other than as stated therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
assets, properties or operations thereof or the consummation of
the transactions contemplated under this Underwriting Agreement,
the applicable Terms Agreement or the Indenture or the
performance by the Company of its obligations hereunder and
thereunder. The aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a
party or of which any of their respective assets, properties or
operations is the subject which are not described in the
Registration Statement and the Prospectus, including ordinary
routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(16) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by
reference therein or to be filed as exhibits thereto which have
not been so described and filed as required.
(17) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order registration,
qualification or decree of, any court or governmental authority
or agency, domestic or foreign, is necessary or required for the
performance by the Company of its obligations under this
Underwriting Agreement or the applicable Terms Agreement or in
connection with the transactions contemplated under this
Underwriting Agreement, such Terms Agreement or the Indenture,
except such as have been already obtained or as may be required
under state securities laws.
(18) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of
any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or
any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(19) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate Federal, state, local or
foreign regulatory agencies or bodies, including but not limited
to the FCC and NPSC, necessary to conduct the business now
operated by them. The Company and its subsidiaries are in
compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, result in a Material
Adverse Effect. All of the Governmental Licenses are valid and
in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not result in a
Material Adverse Effect. Neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(20) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other
properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind, except (A) as
otherwise stated in the Registration Statement and the
Prospectus or (B) those which do not, singly or in the
aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such
property by the Company or any of its subsidiaries. All of the
leases and subleases material to the business of the Company and
its subsidiaries considered as one enterprise, and under which
the Company or any of its subsidiaries holds properties
described in the Prospectus, are in full force and effect, and
neither the Company nor any of its subsidiaries has received any
notice of any material claim of any sort that has been asserted
by anyone adverse to the rights of the Company or any of its
subsidiaries under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or
such subsidiary of the continued possession of the leased or
subleased premises under any such lease or sublease.
(21) Commodity Exchange Act. The Underwritten Debt
Securities being sold pursuant to the applicable Terms
Agreement, upon issuance, will be excluded or exempted under, or
beyond the purview of, the Commodity Exchange Act, as amended
(the "Commodity Exchange Act"), and the rules and regulations of
the Commodity Futures Trading Commission under the Commodity
Exchange Act (the "Commodity Exchange Act Regulations").
(22) Investment Company Act. The Company is not, and upon
the issuance and sale of the Underwritten Debt Securities as
herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
(23) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would
not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is
in violation of any Federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof
including any judicial or administrative order, consent, decree
or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have
all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries
and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-
up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(b) Officers' Certificates. Any certificate signed by any
officer of the Company or any of its subsidiaries and delivered to any
Underwriter or to counsel for the Underwriters in connection with the
offering of the Underwritten Debt Securities shall be deemed a
representation and warranty by the Company to each Underwriter as to the
matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date
subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Debt Securities. The several commitments of
the Underwriters to purchase the Underwritten Debt Securities pursuant to
the applicable Terms Agreement shall be deemed to have been made on the
basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
(b) Option Underwritten Debt Securities. In addition, subject
to the terms and conditions herein set forth, the Company may grant, if so
provided in the applicable Terms Agreement, an option to the Underwriters,
severally and not jointly, to purchase up to the aggregate principal
amount, of the Option Underwritten Debt Securities set forth therein at a
price per Option Underwritten Debt Security equal to the price per Initial
Underwritten Debt Security. Such option, if granted, will expire 30 days
after the date of such Terms Agreement, and may be exercised in whole or
in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Underwritten Debt Securities upon notice by Merrill Lynch to the
Company setting forth the aggregate principal amount of Option
Underwritten Debt Securities as to which the several Underwriters are then
exercising the option and the time, date and place of payment and delivery
for such Option Underwritten Debt Securities. Any such time and date of
payment and delivery (each, a "Date of Delivery") shall be determined by
Merrill Lynch, but shall not be later than seven full business days after
the exercise of said option, nor in any event prior to the Closing Time,
unless otherwise agreed upon by Merrill Lynch and the Company. If the
option is exercised as to all or any portion of the Option Underwritten
Debt Securities, each of the Underwriters, severally and not jointly, will
purchase that proportion of the aggregate principal amount of Option
Underwritten Debt Securities then being purchased which the aggregate
principal amount of Initial Underwritten Debt Securities each such
Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total number or aggregate principal amount of
Initial Underwritten Debt Securities, subject to such adjustments as
Merrill Lynch in its discretion shall make to eliminate any sales or
purchases of a fractional aggregate principal amount of Option
Underwritten Debt Securities.
(c) Payment. Payment of the purchase price for, and delivery
of, the Initial Underwritten Debt Securities shall be made at the offices
of Skadden, Arps, Slate, Meagher & Flom (Illinois), 333 West Wacker Drive,
Suite 2100, Chicago, IL 60606, or at such other place as shall be agreed
upon by Merrill Lynch and the Company, at 9:00 A.M. (Central time) on the
third (fourth, if the pricing occurs after 3:30 P.M. Central time) on any
given day business day after the date of the applicable Terms Agreement
(unless postponed in accordance with the provisions of Section 10 hereof),
or such other time not later than 10 business days after such date as
shall be agreed upon by Merrill Lynch and the Company (such time and date
of payment and delivery being herein called "Closing Time"). In addition,
in the event that the Underwriters have exercised their option, if any, to
purchase any or all of the Option Underwritten Debt Securities, payment of
the purchase price for, and delivery of such Option Underwritten Debt
Securities, shall be made at the above-mentioned offices of Skadden, Arps,
Slate, Meagher & Flom (Illinois), or at such other place as shall be
agreed upon by Merrill Lynch and the Company, on the relevant Date of
Delivery as specified in the notice from Merrill Lynch to the Company.
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company,
against delivery to Merrill Lynch for the respective accounts of the
Underwriters of the Underwritten Debt Securities to be purchased by them.
It is understood that each Underwriter has authorized Merrill Lynch, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Underwritten Debt Securities which it has
severally agreed to purchase. Merrill Lynch, individually and not as
representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Underwritten Debt Securities to
be purchased by any Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration. The Underwritten Debt
Securities, or certificates for the Underwritten Debt Securities, as
applicable, shall be in such denominations and registered in such names as
Merrill Lynch may request in writing at least one full business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
The Underwritten Debt Securities, or certificates for the Underwritten
Debt Securities, as applicable, will be made available for examination and
packaging by Merrill Lynch in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants
with Merrill Lynch and with each Underwriter participating in the offering
of Underwritten Debt Securities, as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of
the 1933 Act Regulations, if and as applicable, and will notify the
Representative(s) immediately, and confirm the notice in writing, of (i)
the effectiveness of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the Prospectus,
(ii) the receipt of any comments from the Commission, (iii) any request by
the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information,
and (iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Underwritten Debt Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect
the filings necessary pursuant to Rule 424 and will take such steps as it
deems necessary to ascertain promptly whether the Prospectus transmitted
for filing under Rule 424 was received for filing by the Commission and,
in the event that it was not, it will promptly file the Prospectus. The
Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) Filing of Amendments. The Company will give Merrill Lynch
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b) of the 1933
Act Regulations), any Term Sheet or any amendment, supplement or revision
to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether pursuant to the
1933 Act, the 1934 Act or otherwise, will furnish Merrill Lynch with
copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any
such document to which Merrill Lynch or counsel for the Underwriters shall
object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to Merrill Lynch and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) and signed
copies of all consents and certificates of experts, and will also deliver
to Merrill Lynch, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the Underwriters. Copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter may reasonably request, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act.
The Company will furnish to each Underwriter, without charge, during the
period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, such number of copies of the Prospectus as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Underwritten Debt Securities as contemplated in this
Underwriting Agreement and the applicable Terms Agreement and in the
Registration Statement and the Prospectus. If at any time when the
Prospectus is required by the 1933 Act or the 1934 Act to be delivered in
connection with sales of the Debt Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion
of counsel for the Underwriters or for the Company, to amend the
Registration Statement in order that the Registration Statement will not
contain an 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 or to amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the opinion of such counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations,
the Company will promptly prepare and file with the Commission, subject to
Section 3(b), such amendment or supplement as may be necessary to correct
such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to
the Underwriters, without charge, such number of copies of such amendment
or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the Underwritten
Debt Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions (domestic or foreign) as Merrill
Lynch may designate and to maintain such qualifications in effect for a
period of not less than one year from the date of the applicable Terms
Agreement; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Underwritten Debt Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification
in effect for a period of not less than one year from the date of such
Terms Agreement.
(g) Earnings Statement. The Company will timely file such
reports pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section II(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Underwritten Debt Securities in the
manner specified in the Prospectus under "Use of Proceeds."
(i) Listing. The Company will use its best efforts to effect
the listing of the Underwritten Debt Securities, prior to the Closing
Time, on any national securities exchange or quotation system if and as
specified in the applicable Terms Agreement.
(j) Restriction on Sale of Debt Securities. Between the date
of the applicable Terms Agreement and the Closing Time or such other date
specified in such Terms Agreement, the Company will not, without the prior
written consent of Merrill Lynch, directly or indirectly, issue, sell,
offer to sell, grant any option for the sale of, or otherwise dispose of,
the securities specified in such Terms Agreement.
(k) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to
the performance of its obligations under this Underwriting Agreement or
the applicable Terms Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements
and exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this
Underwriting Agreement, any Terms Agreement, any Agreement among
Underwriters, the Indenture, and such other documents as may be required
in connection with the offering, purchase, sale, issuance or delivery of
the Underwritten Debt Securities, (iii) the preparation, issuance and
delivery of the Underwritten Debt Securities, any certificates for the
Underwritten Debt Securities to the Underwriters, including any transfer
taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Underwritten Debt Securities to the Underwriters, (iv) the
fees and disbursements of the Company's counsel, accountants and other
advisors or agents (including transfer agents and registrars), as well as
the fees and disbursements of the Trustees, and their respective counsel,
(v) the qualification of the Underwritten Debt Securities under state
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation, printing and delivery of the Blue Sky Survey and any Legal
Investment Survey, and any amendment thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheet, and the Prospectus and any amendments or supplements thereto,
(vii) the fees charged by nationally recognized statistical rating
organizations for the rating of the Underwritten Debt Securities, (viii)
the fees and expenses incurred with respect to the listing of the
Underwritten Debt Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review, if any, by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Debt Securities, and (x) the fees and expenses of any
Underwriter acting in the capacity of a "qualified independent
underwriter" (as defined in Section 20) of Schedule E of the by-laws of
the NASD), if applicable.
(b) Termination of Agreement. If the applicable Terms
Agreement is terminated by Merrill Lynch in accordance with the provisions
of Section 5 or Section 9(b)(i) hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Underwritten
Debt Securities pursuant to the applicable Terms Agreement are subject to
the accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the
Company or any of its subsidiaries delivered pursuant to the provisions
hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act and no proceedings for that purpose shall have been initiated
or be pending or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with
to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing information relating to the description of the
Underwritten Debt Securities, the specific method of distribution and
similar matters shall have been filed with the Commission in accordance
with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any required
post-effective amendment providing such information shall have been filed
and declared effective in accordance with the requirements of Rule 430A),
or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have
been filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinions of Counsel for Company. At Closing Time, Merrill
Lynch shall have received the favorable opinion, dated as of Closing Time,
of
(1) Foley & Lardner, special counsel for the Company, in
form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for
each of the other Underwriters, to the effect set forth in
Exhibit B hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(2) Woods & Aitken, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the
other Underwriters, to the effect set forth in Exhibit C hereto
and to such further effect as counsel to the Underwriters may
reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time,
Merrill Lynch shall have received the favorable opinion, dated as of
Closing Time, of Skadden, Arps, Slate, Meagher & Flom (Illinois), counsel
for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, with respect to the matters set
forth in [ ], as applicable,
[ ] (solely as to the information in the Prospectus under "Description
of Debt Securities" or any caption purporting to describe any such Debt
Securities), and the penultimate paragraph of Exhibit B hereto. In giving
such opinion, such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of Illinois and the
Federal law of the United States, upon the opinions of counsel
satisfactory to Merrill Lynch. 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.
(d) Officers' Certificate. At Closing Time, there shall not
have been, since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and Merrill Lynch shall have received a
certificate of the President or a Vice President of the Company and of the
chief financial officer or chief accounting officer of the Company, dated
as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1 are
true and correct with the same force and effect as though expressly made
at and as of the Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or threatened by
the Commission.
(e) Accountant's Comfort Letter. At the time of the execution
of the applicable Terms Agreement, Merrill Lynch shall have received from
KPMG Peat Marwick LLP a letter dated such date, in form and substance
satisfactory to Merrill Lynch, together with signed or reproduced copies
of such letter for each of the other Underwriters, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, Merrill Lynch
shall have received from KPMG Peat Marwick LLP a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section 5, except that
the specified date referred to shall be a date not more than three
business days prior to the Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of
Delivery, the Underwritten Debt Securities shall have the ratings accorded
by any "nationally recognized statistical rating organization", as defined
by the Commission for purposes of Rule 436(g)(2) of the 1933 Act
Regulations, if and as specified in the applicable Terms Agreement, and
the Company shall have delivered to Merrill Lynch a letter, dated as of
such date, from each such rating organization, or other evidence
satisfactory to Merrill Lynch, confirming that the Underwritten Debt
Securities have such ratings. Since the time of execution of such Terms
Agreement, there shall not have occurred a downgrading in the rating
assigned to the Underwritten Debt Securities or any of the Company's other
securities by any such rating organization, and no such rating
organization shall have publicly announced that it has under surveillance
or review its rating of the Underwritten Debt Securities or any of the
Company's other securities.
(h) Approval of Listing. At Closing Time, the Underwritten
Debt Securities shall have been approved for listing, subject only to
official notice of issuance, if and as specified in the applicable Terms
Agreement.
(i) No Objection. If the Registration Statement or an offering
of Underwritten Debt Securities has been filed with the NASD for review,
the NASD shall not have raised any objection with respect to the fairness
and reasonableness of the underwriting terms and arrangements.
(j) Lock-up Agreements. On the date of the applicable Terms
Agreement, Merrill Lynch shall have received, in form and substance
satisfactory to it, each lock-up agreement, if any, specified in such
Terms Agreement as being required to be delivered by the persons listed
therein.
(k) Over-Allotment Option In the event that the Underwriters
are granted an over-allotment option by the Company in the applicable
Terms Agreement and the Underwriters exercise their option to purchase all
or any portion of the Option Underwritten Debt Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any of its
subsidiaries hereunder shall be true and correct as of each Date of
Delivery, and, at the relevant Date of Delivery, Merrill Lynch shall have
received:
(i) a certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and the chief
financial officer or chief accounting officer of the Company,
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of
such Date of Delivery;
(ii) the favorable opinion of Foley & Lardner, special
counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Underwritten Debt Securities and
otherwise to the same effect as the opinion required by Section
5(b)(1) hereof;
(iii) the favorable opinion of Woods & Aitken, counsel for
the Company, in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the
Option Underwritten Debt Securities and otherwise to the same
effect as the opinion required by Section 5(b)(2) hereof;
(iv) the favorable opinion of Skadden, Arps, Slate, Meagher
& Flom (Illinois), counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Underwritten Debt Securities
and otherwise to the same effect as the opinion required by
Section 5(c) hereof; and
(v) a letter from KPMG Peat Marwick LLP, in form and
substance satisfactory to Merrill Lynch and dated such Date of
Delivery, substantially in the same form and substance as the
letter furnished to Merrill Lynch pursuant to Section 5(f)
hereof, except that the "specified date" on the letter furnished
pursuant to this paragraph shall be a date not more than three
business days prior to such Date of Delivery.
(l) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Underwritten Debt
Securities as herein contemplated, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Underwritten Debt Securities
as herein contemplated shall be satisfactory in form and substance to
Merrill Lynch and counsel for the Underwriters.
(m) Termination of Terms Agreement. If any condition specified
in this Section 5 shall not have been fulfilled when and as required to be
fulfilled, the applicable Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable overallotment option for the
purchase of Option Underwritten Debt Securities on a Date of Delivery
after the Closing Time, the obligations of the Underwriters to purchase
the Option Underwritten Debt Securities on such Date of Delivery) may be
terminated by Merrill Lynch by notice to the Company at any time at or
prior to the Closing Time (or such Date of Delivery, as applicable), and
such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or the
omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged
untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by
Merrill Lynch), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through Merrill Lynch expressly for use in
the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part thereof,
if applicable, or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto); provided, further, that the foregoing
indemnity with respect to any untrue statement contained in or any
omission from the preliminary prospectus shall not inure to the benefit of
any Underwriter(or any person controlling such Underwriter) from whom the
person asserting any such loss, liability, claim, damage or expense
purchased any of the Debt Securities that are the subject thereof if the
Company shall sustain the burden of proving that (i) the untrue statement
or omission contained in the preliminary prospectus (excluding documents
incorporated by reference) was corrected; (ii) such person was not sent or
given a copy of the Prospectus (excluding documents incorporated by
reference) which corrected the untrue statement or omission at or prior to
the written confirmation of the sale of such Debt Securities to such
person if required by applicable law; and (iii) the Company satisfied its
obligation pursuant to Section 3(d) of this Agreement to provide a
sufficient number of copies of the Prospectus to the Underwriters.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information deemed to
be a part thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement.
In the case of parties indemnified pursuant to Section 6(a) above, counsel
to the indemnified parties shall be selected by Merrill Lynch, and, in the
case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or
Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement without Consent if Failure To Reimburse. If at
any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel
pursuant to this Agreement, such indemnifying party agrees that it shall
be liable for any settlement of the nature contemplated by Section
6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses, liabilities,
claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Underwritten
Debt Securities pursuant to the applicable Terms Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand, and of the Underwriters, on the other hand,
in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company, on the one hand,
and the Underwriters, on the other hand, in connection with the offering
of the Underwritten Debt Securities pursuant to the applicable Terms
Agreement shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Underwritten Debt Securities
(before deducting expenses) received by the Company and the total
underwriting discount received by the Underwriters, in each case as set
forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet bear to the aggregate initial
public offering price of such Underwritten Debt Securities as set forth on
such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to,
among other things, whether any such 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 by the Underwriters and
the parties' relative intent, 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 contribution pursuant to this Section 7 were 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 account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in
this Section 7 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing
or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Underwritten Debt Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution
as such Underwriter, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution
as the Company. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number or
aggregate principal amount, as the case may be, of Initial Underwritten
Debt Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements To
Survive Delivery. All representations, warranties and agreements
contained in this Underwriting Agreement or the applicable Terms Agreement
or in certificates of officers of the Company submitted pursuant hereto or
thereto shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of
and payment for the Underwritten Debt Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement
(excluding the applicable Terms Agreement) may be terminated for any
reason at any time by the Company or by Merrill Lynch upon the giving of
30 days' prior written notice of such termination to the other party
hereto.
(b) Terms Agreement. Merrill Lynch may terminate the
applicable Terms Agreement, by notice to the Company, at any time at or
prior to the Closing Time or any relevant Date of Delivery, if (i) there
has been, since the time of execution of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, or (ii) there has occurred any material
adverse change in the financial markets in the United States or, if the
Underwritten Debt Securities include Debt Securities denominated or
payable in, or indexed to, one or more foreign or composite currencies, in
the currency exchange rates or exchange controls or the international
financial markets, or any outbreak of hostilities or escalation thereof or
other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or
economic conditions, in each case the effect of which, in the reasonable
judgment of Merrill Lynch, would be likely to prejudice materially the
success of the offering and distribution of the Underwritten Debt
Securities or dealings in the Underwritten Debt Securities in the
secondary market, or (iii) trading in any securities of the Company has
been suspended or limited by the Commission or the Nasdaq National Market,
or if trading generally on the New York Stock Exchange or the American
Stock Exchange or in the Nasdaq National Market has been suspended or
limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by either of said exchanges
or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) a banking moratorium has been declared by
either Federal or New York authorities or, if the Underwritten Debt
Securities include Debt Securities denominated or payable in, or indexed
to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries.
(c) Liabilities. If this Underwriting Agreement or the
applicable Terms Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the Closing Time or the relevant
Date of Delivery, as the case may be, to purchase the Underwritten Debt
Securities which it or they are obligated to purchase under the applicable
Terms Agreement (the "Defaulted Debt Securities"), then Merrill Lynch
shall have the right, within 24 hours thereafter, to make arrangements for
one or more of the nondefaulting Underwriters, or any other underwriters,
to purchase all, but not less than all, of the Defaulted Debt Securities
in such amounts as may be agreed upon and upon the terms herein set forth;
if, however, Merrill Lynch shall not have completed such arrangements
within such 24-hour period, then:
(a) if the aggregate principal amount, of Defaulted Debt
Securities does not exceed 10% of the aggregate principal amount of
Underwritten Debt Securities to be purchased on such date pursuant to
such Terms Agreement, the nondefaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations under such Terms Agreement bear to the underwriting
obligations of all nondefaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Debt
Securities exceeds 10% of the aggregate principal amount of
Underwritten Debt Securities to be purchased on such date pursuant to
such Terms Agreement, such Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for
the purchase of Option Underwritten Debt Securities on a Date of
Delivery after the Closing Time, the obligations of the Underwriters
to purchase, and the Company to sell, such Option Underwritten Debt
Securities on such Date of Delivery) shall terminate without
liability on the part of any nondefaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a
Date of Delivery after the Closing Time, a termination of the obligations
of the Underwriters and the Company with respect to the related Option
Underwritten Debt Securities, as the case may be, either Merrill Lynch or
the Company shall have the right to postpone the Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding
seven days in order to effect any required changes in the Registration
Statement or the Prospectus or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given
if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed to Merrill Lynch at World
Financial Center, North Tower, New York, New York 10281-1201, attention of
; and notices to the Company shall be directed to it at 1440 M
Street, Lincoln, Nebraska 68508, attention of .
SECTION 12. Parties. This Underwriting Agreement and the
applicable Terms Agreement shall each inure to the benefit of and be
binding upon the Company, Merrill Lynch and, upon execution of such Terms
Agreement, any other Underwriters and their respective successors.
Nothing expressed or mentioned in this Underwriting Agreement or such
Terms Agreement is intended or shall be construed to give any person, firm
or corporation, other than the Underwriters and the Company and their
respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any
provision herein or therein contained. This Underwriting Agreement and
such Terms Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the parties
hereto and thereto and their respective successors, and said controlling
persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Debt Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING
AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this Underwriting Agreement, along with all counterparts, will
become a binding agreement between Merrill Lynch and the Company in
accordance with its terms.
Very truly yours,
ALIANT COMMUNICATIONS INC.
by:
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
by:
Authorized Signatory
ALIANT COMMUNICATIONS INC.
AND
U.S. BANK NATIONAL ASSOCIATION, Trustee
INDENTURE
Dated as of February 23, 1998
_______________
<PAGE>
CROSS REFERENCE SHEET
__________
Provisions of Trust Indenture Act of 1939 and Indenture to be
dated as of February 23, 1998 between Aliant Communications Inc. and U.S.
Bank National Association, Trustee:
Section of the Act Section of Indenture
310(a)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
310(1)(3) and (3) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
310(b) . . . . . . . . . . . . . . . . . . . . . 6.8 and 6.10(a) and (b)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . 6.13(a) and (c)(1) and (2)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 and 4.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2(a) and (b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44.4(a)
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(c)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(d)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3
314(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
314(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a), (c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.11
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.9
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . Not required
316(a) (last sentence) . . . . . . . . . . . . . . . . . . . . . . . 7.4
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4(a) and (b)
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7
* This Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
_________________
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authorization of Indenture . . . . . . . . . . . . . . . . . . . . . 1
Compliance with Legal Requirements . . . . . . . . . . . . . . . . . 1
Purpose of and Consideration for Indenture . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"AUTHENTICATING AGENT" . . . . . . . . . . . . . . . . . . . . 1
"AUTHORIZED NEWSPAPER" . . . . . . . . . . . . . . . . . . . . 2
"BOARD OF DIRECTORS" . . . . . . . . . . . . . . . . . . . . . 2
"BOARD RESOLUTION" . . . . . . . . . . . . . . . . . . . . . . 2
"BUSINESS DAY" . . . . . . . . . . . . . . . . . . . . . . . . 2
"CAPITAL STOCK" . . . . . . . . . . . . . . . . . . . . . . . . 2
"CAPITALIZATION" . . . . . . . . . . . . . . . . . . . . . . . 2
"CAPITALIZED RENT" . . . . . . . . . . . . . . . . . . . . . . 2
"COMMISSION" . . . . . . . . . . . . . . . . . . . . . . . . . 2
"CONSOLIDATED CAPITALIZATION" . . . . . . . . . . . . . . . . . 3
"CORPORATE TRUST OFFICE" . . . . . . . . . . . . . . . . . . . 3
"COUPON" . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"COVENANT DEFEASANCE" . . . . . . . . . . . . . . . . . . . . . 3
"DEBT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"DEPOSITARY" . . . . . . . . . . . . . . . . . . . . . . . . . 3
"DOLLAR" . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"ECU" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"EVENT OF DEFAULT" . . . . . . . . . . . . . . . . . . . . . . 3
"EXCHANGE ACT" . . . . . . . . . . . . . . . . . . . . . . . . 3
"FOREIGN CURRENCY" . . . . . . . . . . . . . . . . . . . . . . 3
"FUNDED DEBT" . . . . . . . . . . . . . . . . . . . . . . . . . 3
"GOVERNMENT OBLIGATIONS" . . . . . . . . . . . . . . . . . . . 4
"HOLDER," "HOLDER OF SECURITIES," "SECURITYHOLDER" . . . . . . 4
"INDENTURE" . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"INTEREST" . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"ISSUER" . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"ISSUER ORDER" . . . . . . . . . . . . . . . . . . . . . . . . 4
"JUDGMENT CURRENCY" . . . . . . . . . . . . . . . . . . . . . . 4
"LIEN" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"MAKE-WHOLE AMOUNT" . . . . . . . . . . . . . . . . . . . . . . 4
"OFFICERS' CERTIFICATE" . . . . . . . . . . . . . . . . . . . . 5
"OPINION OF COUNSEL" . . . . . . . . . . . . . . . . . . . . . 5
"ORIGINAL ISSUE DATE" . . . . . . . . . . . . . . . . . . . . . 5
"ORIGINAL ISSUE DISCOUNT SECURITY" . . . . . . . . . . . . . . 5
"OUTSTANDING" . . . . . . . . . . . . . . . . . . . . . . . . . 5
"PERIODIC OFFERING" . . . . . . . . . . . . . . . . . . . . . . 6
"PERSON" . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"PRINCIPAL" . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"PROPERTY" . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"RECORD DATE" . . . . . . . . . . . . . . . . . . . . . . . . . 6
"REGISTERED GLOBAL SECURITY" . . . . . . . . . . . . . . . . . 6
"REGISTERED SECURITY" . . . . . . . . . . . . . . . . . . . . . 6
"REQUIRED CURRENCY" . . . . . . . . . . . . . . . . . . . . . . 6
"RESPONSIBLE OFFICER" . . . . . . . . . . . . . . . . . . . . . 6
"RESTRICTED SUBSIDIARY" . . . . . . . . . . . . . . . . . . . . . 7
"SALE AND LEASEBACK TRANSACTION" . . . . . . . . . . . . . . . 7
"SECURED DEBT" . . . . . . . . . . . . . . . . . . . . . . . . 7
"SECURITY" or "SECURITIES" . . . . . . . . . . . . . . . . . . 7
"SECURITY REGISTER" and "SECURITY REGISTRAR" . . . . . . . . . 7
"SIGNIFICANT SUBSIDIARY" . . . . . . . . . . . . . . . . . . . 7
"SUBSIDIARY" . . . . . . . . . . . . . . . . . . . . . . . . . 7
"TRUST INDENTURE ACT OF 1939" . . . . . . . . . . . . . . . . . 8
"TRUSTEE" . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"UNREGISTERED SECURITY" . . . . . . . . . . . . . . . . . . . . 8
"YIELD TO MATURITY" . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE II
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.1 FORMS GENERALLY. . . . . . . . . . . . . . . . . 8
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION . . . . . . . . . . . . . . . . . 9
SECTION 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES . . . . . . 8
SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES . . . . 11
SECTION 2.5 EXECUTION OF SECURITIES . . . . . . . . . . . . . 14
SECTION 2.6 CERTIFICATE OF AUTHENTICATION. . . . . . . . . . 15
SECTION 2.7 DENOMINATION AND DATE OF SECURITIES,
PAYMENTS OF INTEREST . . . . . . . . . . . . . . 15
SECTION 2.8 REGISTRATION, TRANSFER AND EXCHANGE . . . . . . . 15
SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST
AND STOLEN SECURITIES . . . . . . . . . . . . . . 19
SECTION 2.10 CANCELLATION OF SECURITIES;
DISPOSITION THEREOF . . . . . . . . . . . . . . . 20
SECTION 2.11 TEMPORARY SECURITIES . . . . . . . . . . . . . . 20
ARTICLE III
COVENANTS OF THE ISSUER . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST . . . . . . . . 21
SECTION 3.2 OFFICES FOR PAYMENT, ETC. . . . . . . . . . . . . 22
SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE
OF TRUSTEE . . . . . . . . . . . . . . . . . . . 22
SECTION 3.4 PAYING AGENTS . . . . . . . . . . . . . . . . . . 22
SECTION 3.5 WRITTEN STATEMENT TO TRUSTEE . . . . . . . . . . 23
SECTION 3.6 LIMITATION ON SECURED DEBT . . . . . . . . . . . 23
SECTION 3.7 LIMITATION ON SALE AND LEASEBACK . . . . . . . . 25
SECTION 3.8 EXISTENCE . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.9 MAINTENANCE OF PROPERTIES . . . . . . . . . . . . 27
SECTION 3.10 INSURANCE . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.11 PAYMENT OF TAXES AND OTHER CLAIMS . . . . . . . . 27
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER
AND THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.1 ISSUER TO FURNISH TRUSTEE NAMES
AND ADDRESSES OF SECURITYHOLDERS . . . . . . . . 27
SECTION 4.2 PRESERVATION AND DISCLOSURE OF SECURITY
HOLDERS LISTS . . . . . . . . . . . . . . . . . . 28
SECTION 4.3 REPORTS BY THE ISSUER . . . . . . . . . . . . . . 29
SECTION 4.4 REPORTS BY THE TRUSTEE . . . . . . . . . . . . . 30
SECTION 4.5 PUBLICATION OF CERTAIN NOTICES . . . . . . . . . 31
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT
OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.1 EVENT OF DEFAULT DEFINED; ACCELERATION
OF MATURITY; WAIVER OF DEFAULT . . . . . . . . . 31
SECTION 5.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE;
TRUSTEE MAY PROVE DEBT . . . . . . . . . . . . . 34
SECTION 5.3 APPLICATION OF PROCEEDS . . . . . . . . . . . . . 36
SECTION 5.4 SUITS FOR ENFORCEMENT . . . . . . . . . . . . . . 37
SECTION 5.5 RESTORATION OF RIGHTS ON ABANDONMENT
OF PROCEEDINGS . . . . . . . . . . . . . . . . . 37
SECTION 5.6 LIMITATIONS ON SUITS BY SECURITYHOLDERS . . . . . 38
SECTION 5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS
TO INSTITUTE CERTAIN SUITS . . . . . . . . . . . 38
SECTION 5.8 POWERS AND REMEDIES CUMULATIVE; DELAY
OR OMISSION NOT WAIVER OF DEFAULT . . . . . . . . 38
SECTION 5.9 CONTROL BY HOLDERS OF SECURITIES . . . . . . . . 39
SECTION 5.10 WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . 39
SECTION 5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT
MAY WITHHOLD IN CERTAIN CIRCUMSTANCES . . . . . . 40
SECTION 5.12 RIGHT OF COURT TO REQUIRE FILING OF
UNDERTAKING TO PAY COSTS . . . . . . . . . . . . 40
ARTICLE VI
CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE;
DURING DEFAULT; PRIOR TO DEFAULT . . . . . . . . 40
SECTION 6.2 CERTAIN RIGHTS OF THE TRUSTEE . . . . . . . . . . 42
SECTION 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS,
DISPOSITION OF SECURITIES OR APPLICATION
OF PROCEEDS THEREOF . . . . . . . . . . . . . . . 43
SECTION 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES
OR COUPONS; COLLECTIONS, ETC. . . . . . . . . . . 43
SECTION 6.5 MONEYS HELD BY TRUSTEE . . . . . . . . . . . . . 43
SECTION 6.6 COMPENSATION AND INDEMNIFICATION OF
TRUSTEE AND ITS PRIOR CLAIM . . . . . . . . . . . 43
SECTION 6.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS'
CERTIFICATE, ETC. . . . . . . . . . . . . . . . . 44
SECTION 6.8 QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS . 44
SECTION 6.9 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE . . . 44
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT
OF SUCCESSOR TRUSTEE . . . . . . . . . . . . . . 44
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
TRUSTEE . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS OF TRUSTEE . . . . . . . . 47
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
THE ISSUER . . . . . . . . . . . . . . . . . . . 47
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT . . . . . . . 51
ARTICLE VII
CONCERNING THE SECURITY HOLDERS. . . . . . . . . . . . . . . . . . 52
SECTION 7.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS . . . 52
SECTION 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF
HOLDING OF SECURITIES . . . . . . . . . . . . . . 52
SECTION 7.3 HOLDERS TO BE TREATED AS OWNERS . . . . . . . . . 52
SECTION 7.4 SECURITIES OWNED BY ISSUER DEEMED NOT
OUTSTANDING . . . . . . . . . . . . . . . . . . . 53
SECTION 7.5 RIGHT OF REVOCATION OF ACTION TAKEN . . . . . . . 54
ARTICLE VIII
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.1 SUPPLEMENTAL INDENTURES WITHOUT
CONSENT OF SECURITYHOLDERS . . . . . . . . . . . 55
SECTION 8.2 SUPPLEMENTAL INDENTURES WITH
CONSENT OF SECURITYHOLDERS . . . . . . . . . . . 56
SECTION 8.3 EFFECT OF SUPPLEMENTAL INDENTURE . . . . . . . . 57
SECTION 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE . . . . . . . . 57
SECTION 8.5 NOTATION ON SECURITIES IN RESPECT OF
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . 57
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE . . . . . . . . . . . . 57
SECTION 9.1 COVENANT OF ISSUER NOT TO MERGE,
CONSOLIDATE, SELL OR CONVEY PROPERTY
EXCEPT UNDER CERTAIN CONDITIONS . . . . . . . . . 57
SECTION 9.2 SECURITIES TO BE SECURED IN CERTAIN EVENTS . . . 58
SECTION 9.3 SUCCESSOR PERSON SUBSTITUTED FOR ISSUER . . . . . 58
SECTION 9.4 OFFICERS' CERTIFICATE AND OPINION OF
COUNSEL DELIVERED TO TRUSTEE . . . . . . . . . . 59
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS . . . . 59
SECTION 10.1 SATISFACTION AND DISCHARGE OF INDENTURE . . . . . 59
SECTION 10.2 APPLICATION BY TRUSTEE OF FUNDS
DEPOSITED FOR PAYMENT OF SECURITIES . . . . . . . 63
SECTION 10.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT . . . . 63
SECTION 10.4 RETURN OF MONEYS HELD BY TRUSTEE AND
PAYING AGENT UNCLAIMED FOR TWO YEARS . . . . . . 63
SECTION 10.5 INDEMNITY FOR GOVERNMENT OBLIGATIONS . . . . . . 64
SECTION 10.6 REINSTATEMENT . . . . . . . . . . . . . . . . . . 64
ARTICLE XI
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . 64
SECTION 11.1 INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS OF ISSUER EXEMPT
FROM INDIVIDUAL LIABILITY . . . . . . . . . . . . 64
SECTION 11.2 PROVISIONS OF INDENTURE FOR THE SOLE
BENEFIT OF PARTIES AND HOLDERS OF
SECURITIES AND COUPONS . . . . . . . . . . . . . 65
SECTION 11.3 SUCCESSORS AND ASSIGNS OF ISSUER
BOUND BY INDENTURE . . . . . . . . . . . . . . . 65
SECTION 11.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE
AND HOLDERS OF SECURITIES AND COUPONS . . . . . . 65
SECTION 11.5 OFFICERS' CERTIFICATES AND OPINIONS OF
COUNSEL; STATEMENTS TO BE CONTAINED THEREIN . . . 66
SECTION 11.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS
AND HOLIDAYS . . . . . . . . . . . . . . . . . . 66
SECTION 11.7 CONFLICT OF ANY PROVISION OF INDENTURE
WITH TRUST INDENTURE ACT OF 1939 . . . . . . . . 67
SECTION 11.8 NEW YORK LAW TO GOVERN . . . . . . . . . . . . . 67
SECTION 11.9 COUNTERPARTS . . . . . . . . . . . . . . . . . . 67
SECTION 11.10 EFFECT OF HEADINGS . . . . . . . . . . . . . . . 67
SECTION 11.11 SECURITIES IN A FOREIGN CURRENCY OR IN ECU . . . 67
SECTION 11.12 JUDGMENT CURRENCY . . . . . . . . . . . . . . . 68
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS . . . . . . . . . . . . 68
SECTION 12.1 APPLICABILITY OF ARTICLE . . . . . . . . . . . . 68
SECTION 12.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS . . . . 68
SECTION 12.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION . . . 70
SECTION 12.4 EXCLUSION OF CERTAIN SECURITIES FROM
ELIGIBILITY FOR SELECTION FOR REDEMPTION . . . . 71
SECTION 12.5 MANDATORY AND OPTIONAL SINKING FUNDS . . . . . . 71
THIS INDENTURE dated as of February 23, 1998 between Aliant
Communications Inc., a Nebraska corporation (the "Issuer"), and U.S. Bank
National Association, a national banking association, as trustee (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured debentures, notes or other evidences of indebtedness
to be issued in one or more series (the "Securities") up to such principal
amount or amounts as may from time to time be authorized in accordance
with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the
respective holders from time to time of the Securities and of the Coupons,
if any, appertaining thereto as follows:
ARTICLE I
DEFINITIONS
The following terms (except as otherwise expressly provided or
unless the context otherwise clearly requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section. All other terms used in
this Indenture that are defined in the Trust Indenture Act of 1939 or the
definitions of which in the Securities Act of 1933, as amended (the
"Securities Act"), are referred to in the Trust Indenture Act of 1939,
including terms defined therein by reference to the Securities Act (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 this
Indenture. All accounting terms used herein and not otherwise expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES" means such accounting principles as are generally
accepted at the time of any computation. The words "HEREIN," "HEREOF" and
"HEREUNDER" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision.
The terms defined in this Article include the plural as well as the
singular.
"AUTHENTICATING AGENT" shall have the meaning set forth in
Section 6.14.
"AUTHORIZED NEWSPAPER" means, to the extent specified in item
(18) of Section 2.3 or in or pursuant to any Board Resolution or
supplemental indenture referred to in Section 2.3, the newspaper or
newspapers so specified or, if not so specified, means with respect to
each country which is so specified or which is required by Section 4.5 a
newspaper published in an official language of such country of publication
customarily published at least once a day for at least five days in each
calendar week and of general circulation in such country so specified or
required. If it shall be impractical in the opinion of the Trustee to
make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made
or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
"BOARD OF DIRECTORS" means either the Board of Directors of the
Issuer or any committee of such Board duly authorized to act on its
behalf.
"BOARD RESOLUTION" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have
been duly adopted or consented to by the Board of Directors and to be in
full force and effect, and delivered to the Trustee.
"BUSINESS DAY" means, with respect to any series of Securities,
a day on which, in any city where amounts are payable on the Securities of
such series as therein specified, banking institutions are not authorized
or required by law or regulation to close.
"CAPITAL STOCK" means and includes any and all shares,
interests, participation or other equivalents (however designated) of
ownership in a corporation or other Person.
"CAPITALIZATION" means with respect to a Person the total of (a)
Funded Debt, (b) the par value or, in the case of Capital Stock with no
par value, a value stated on the books, of all outstanding shares of
Capital Stock, (c) the paid-in surplus and retained earnings (or minus the
net surplus deficit, as the case may be), (d) deferred taxes and deferred
investment tax credits, (e) Capitalized Rent, and (f) minority interests
in subsidiaries, of such Person.
"CAPITALIZED RENT" means the present value (discounted semi-
annually at a discount rate equal to the weighted average rate of interest
borne by the Securities then Outstanding) of the total net amount of rent
payable for the remaining term of any lease of Property by the Issuer
(including any period for which such lease has been extended); provided,
however, that no such rental obligation shall be deemed to be Capitalized
Rent unless the lease resulted from a Sale and Leaseback Transaction. The
total net amount of rent payable under any lease for any period shall be
the total amount of the rent payable by the lessee with respect to such
period but shall not include amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates, sewer
rates and similar charges.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at
any time after the execution and delivery of this Indenture, such
Commission is not existing and performing the duties now assigned to it
under the Truste Indenture Act of 1939, then the body performing such
duties on such date.
"CONSOLIDATED CAPITALIZATION" means the Capitalization of the
Issuer determined on a consolidated basis as of the end of the Issuer's
then most recently reported fiscal year or quarter, as the case may be,
including minority interests in Subsidiaries.
"CORPORATE TRUST OFFICE" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of
which this Indenture is dated, located at 950 Seventeenth Street, Suite
650, Denver, Colorado 80202, Attention: Corporate Trust Department.
"COUPON" means any interest Coupon appertaining to an
unregistered Security.
"COVENANT DEFEASANCE" shall have the meaning set forth in
Section 10.1(C).
"DEBT" means with respect to a Person all obligations of such
Person for borrowed money which is created, assumed, incurred or
guaranteed in any manner by such Person or for which such Person is
liable.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean each Person who is then a Depositary hereunder;
and if at any time there is more than one such Person, "Depositary" as
used with respect to the Securities of any such series shall mean each
Depositary with respect to the Registered Global Securities of such
series.
"DOLLAR" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of
public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of European Communities.
"EVENT OF DEFAULT" means any event or condition specified as
such in Section 5.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"FOREIGN CURRENCY" means a currency issued by the government of
a country other than the United States of America.
"FUNDED DEBT" means any Debt maturing by its terms more than one
year from its date of issuance (notwithstanding that any portion of such
Debt is included in current liabilities).
"GOVERNMENT OBLIGATIONS" means securities that are (a) direct
obligations of the government which issued the currency in which the
Securities of a particular series are denominated for the payment of which
its full faith and credit is pledged or (b) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
such government the payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, which, in either
case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act) as custodian with respect to any
such Government Obligation or a specific payment of principal of or
interest on any such Government Obligation held by such custodian for the
account of the holder of such depository receipt, provided that (except as
provided 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 such Government Obligation
or the specific payment of principal of or interest on such Government
Obligation evidenced by such depository receipt.
"HOLDER," "HOLDER OF SECURITIES," "SECURITYHOLDER" or other
similar terms mean (a) in the case of any Registered Security, the Person
in whose name such Security is registered in the Security Register kept by
the Security Registrar for that purpose in accordance with the terms
hereof, and (b) in the case of an Unregistered Security, the bearer of
such Security, or any Coupon appertaining thereto, as the case may be.
"INDENTURE" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended
or supplemented or both, and shall include the forms and terms of
particular series of Securities established as provided hereunder.
"INTEREST" means, when used with respect to noninterest bearing
Securities, interest payable after maturity.
"ISSUER" means (except as otherwise provided in Article VI)
Aliant Communications Inc., a Nebraska corporation and, subject to
Article IX, its successors and assigns.
"ISSUER ORDER" means a written statement, request or order of
the Issuer, signed in its name by the Chairman of the Board of Directors,
the President or any Vice President (whether or not designated by a number
or numbers or a word or words added before or after the title "Vice
President") and by the Treasurer, any Assistant Treasurer, the Secretary,
any Assistant Secretary, the Controller or any Assistant Controller of the
Issuer.
"JUDGMENT CURRENCY" shall have the meaning set forth in Section
11.13.
"LIEN" means any mortgage, pledge, security interest, lien,
charge or other encumbrance.
"MAKE-WHOLE AMOUNT" means the amount, if any, in addition to
Principal which is required by a Security, under the terms and conditions
specified therein or as otherwise specified as contemplated by Article II,
to be paid by the Issuer to the Holder thereof in connection with any
optional redemption or accelerated payment of such Security.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman of the Board of Directors, the President or any Vice President
(whether or not designated by a number or numbers or a word or words added
before or after the title "Vice President") and by the Treasurer, any
Assistant Treasurer, the Secretary, any Assistant Secretary, the
Controller or any Assistant Controller of the Issuer and delivered to the
Trustee. Each such certificate shall include the statements provided for
in Section 11.5.
"OPINION OF COUNSEL" means an opinion in writing, signed by
legal counsel, who may be an employee of, or counsel to, the Issuer. Each
such opinion shall include the statements provided for in Section 11.5, if
and to the extent required thereby.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means
the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT SECURITY" means (i) any Security that
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.1 and (ii) any other Security deemed an original
issue discount security for United States Federal income tax purposes.
"OUTSTANDING" when used with reference to Securities, shall,
subject to the provisions of Section 7.4, mean, as of any particular time,
all Securities authenticated and delivered by the Trustee under this
Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Subject to Article X, Securities, or portions thereof, for
the payment or redemption of which moneys or Government Obligations
(as provided for in Section 10.1) in the necessary amount shall have
been deposited in trust with the Trustee or with any paying agent
(other than the Issuer) or shall have been set aside, segregated and
held in trust by the Issuer for the Holders of such Securities (if
the Issuer shall act as its own paying agent), provided that if such
securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have
been made for giving such notice; and
(c) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.9 (except with respect
to any such Security as to which proof satisfactory to the Trustee is
presented that such Security is held by a Person in whose hands such
Security is a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount Security
that shall be deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the
date of such determination under a declaration of acceleration of the
maturity thereof pursuant to Section 5.1.
"PERIODIC OFFERING" means an offering of Securities of any
series from time to time, the specific terms of which Securities,
including, without limitation, the rate or rates of interest, if any,
thereon the stated maturity or maturities thereof and the redemption
provisions, if any, with respect thereto are to be determined by the
Issuer or its agents upon the issuance of such Securities.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"PRINCIPAL", whenever used with reference to the Securities or
any Security or any portion thereof shall be deemed to include the words
"and premium or Make-Whole Amount, if any," and, unless otherwise provided
in accordance with Section 2.3, shall mean with respect to Original Issue
Discount Securities the initial offering price thereof plus interest
accrued to the date of determination at the semiannual compounding rate
which is necessary to produce the Yield to Maturity for such Original
Issue Discount Security from the original issue date thereof.
"PROPERTY" means any directly-held interest of a Person in any
kind of Property or asset, whether real, personal or mixed and whether
tangible or intangible and includes Capital Stock of a subsidiary or other
Person.
"RECORD DATE" shall have the meaning set forth in Section 2.7.
"REGISTERED GLOBAL SECURITY" means a Security evidencing all or
a part of a series of Securities issued to the Depositary, or its nominee,
for such series in accordance with Section 2.3, and bearing the legend
prescribed in Section 2.4.
"REGISTERED SECURITY" means any Security registered on the
Security Register of the Issuer.
"REQUIRED CURRENCY" shall have the meaning set forth in Section
11.12.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means the chairman of the board of directors, any vice chairman of the
board of directors, the chairman of the trust committee, the chairman of
the executive committee, any vice chairman of the executive committee, the
president, any vice president (whether or not designated by numbers or
words added before or after the title "vice president"), the cashier, the
secretary, the treasurer, any trust officer, any assistant trust officer,
any assistant vice president, any assistant cashier, any assistant
secretary, any assistant treasurer 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 knowledge of and familiarity with the particular subject.
"RESTRICTED SUBSIDIARY" means (a) any Subsidiary of the Company
which has substantially all its property in the United States, which owns
or is a lessee of any Property and in which the investment of the Company
and all its Subsidiaries exceeds 2% of Consoliddated Capitalization as of
the date of such determination, and (b) any Subsidiary which is designated
by the Issuer (evidenced by a resolution of the Board of Directors) to be
a Restricted Subsidiary; provided, however, that the Company may not
designate any such Subsidiary to be Restricted Subsidiary if the Company
would thereby breach any covenant or agreement contained herein (on the
assumption that any transaction to which such Subsidiary was a party at
the time of such designation and which would have given rise to a Secured
Debt, or constituted a Sale and Leaseback Transaction at the time it was
entered into had such Subsidiary then been a Restricted Subsidiary was
entered into at the time of such designation).
"SALE AND LEASEBACK TRANSACTION" means any arrangement with any
Person providing for the leasing (as lessee) by the Issuer or any
Restricted Subsidiary of any Property, whether now owned or hereafter
acquired (except for temporary leases for a term, including any renewal
thereof, of not more than three years), which Property has been or is to
be sold or transferred by the Issuer or such Restricted Subsidiary (i) to
any Subsidiary in contemplation of or in connection with such arrangement
or (ii) to such other Person.
"SECURED DEBT" means Debt of the Issuer or any Restricted
Subsidiary secured by any Lien on Property (including Capital Stock or
indebtedness of Subsidiaries) owned by the Issuer or any Restricted
Subsidiary.
"SECURITY" or "SECURITIES" shall have the meaning stated in the
first recital of this Indenture or, as the case may be, Securities that
have been authenticated and delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" shall have the
respective meanings set forth in Section 2.8.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary which is a
"Significant Subsidiary" (as defined in Article I, Rule 1-02 of
Regulation S-X, promulgated under the Securities Act) of the Company.
"SUBSIDIARY" means, with respect to the Issuer, a Person which
is consolidated with the Issuer in accordance with generally accepted
accounting principles; "Subsidiary" means, with respect to any Person, any
corporation, association, partnership or other business entity of which
more than 50% of the total voting power of shares of Capital Stock or
other interests (including partnership interests) entitled (without regard
to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by (i) such Person, (ii) such Person
and one or more subsidiaries of such Person or (iii) one or more
subsidiaries, of such Person.
"TRUST INDENTURE ACT OF 1939" (except as otherwise provided in
Sections 8.1, 8.2 and 11.7) means the Trust Indenture Act of 1939 as in
force at the date as of which this Indenture was originally executed.
"TRUSTEE" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article VI, shall also
include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder; and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the trustee with respect to the Securities of such
series.
"UNREGISTERED SECURITY" means any Security other than a
Registered Security.
"YIELD TO MATURITY" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series,
in accordance with accepted financial practice.
ARTICLE II
SECURITIES
SECTION 2.1 FORMS GENERALLY. The Securities of each series
and the Coupons, if any, to be attached thereto shall be substantially in
such form (not inconsistent with this Indenture) as shall be established
by or pursuant to one or more Board Resolutions (as set forth in a Board
Resolution or, to the extent established pursuant to rather than set forth
in a Board Resolution, an Officers' Certificate detailing such
establishment) or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions or other
variations as are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such letters, numbers or other
marks of identification and such legend or legends or endorsements, not
inconsistent with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant thereto, or
with any rules of any securities exchange or to conform to general usage,
all as may be determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and
Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in
any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons.
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the within-
mentioned Indenture.
U.S. Bank National Association,
as Trustee
By
Authorized Officer"
If at any time there shall be an Authenticating Agent appointed
with respect to any series of Securities, then the Securities of such
series shall bear, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication which shall be
substantially as follows:
"This is one of the Securities referred to in the within-
mentioned Indenture.
U.S. Bank National Association,
as Trustee
By
an Authenticating Agent
By
Authorized Officer"
SECTION 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series, and each
such series shall rank pari passu with all other unsecured and
unsubordinated indebtedness of the Issuer. There shall be established in
or pursuant to one or more Board Resolutions (and to the extent
established pursuant to rather than set forth in a Board Resolution, in an
Officers' Certificate detailing such establishment) or established in one
or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series:
(1) the designation of the Securities of such series, which
shall distinguish the Securities of such series from the Securities
of all other series;
(2) any limit upon the aggregate principal amount of the
Securities of such series that 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 such series pursuant to Section 2.8,
2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which the
Securities of such series are denominated (including, but not limited
to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the Securities
of such series is payable;
(5) the rate or rates at which the Securities of such series
shall bear interest, if any, the date or dates from which such
interest shall accrue, on which such interest shall be payable and
(in the case of Registered Securities) on which a record shall be
taken for the determination of Holders to whom interest is payable
and/or the method by which such rate or rates or date or dates shall
be determined;
(6) the place or places where the principal of and any interest
on Securities of such series shall be payable (if other than as
provided in Section 3.2);
(7) the right, if any, of the Issuer to redeem Securities of
such series, in whole or in part, at its option and the period or
periods within which, the price or prices (including the premium or
Make-Whole Amount, if any) at which and any terms and conditions upon
which Securities of such series may be so redeemed, pursuant to any
sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of such series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of
a Holder thereof and the price or prices at which and the period or
periods within which and any terms and conditions upon which
Securities of such series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and
$5,000 in the case of Unregistered Securities, the denominations in
which securities of such series shall be issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of such series which shall be
payable upon declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the Securities
of such series are denominated, the coin or currency in which payment
of the principal of (and premium or Make-Whole Amount, if any) or
interest on the Securities of such series shall be payable;
(12) if the principal of (and premium or Make-Whole Amount, if
any) or interest on the Securities of such series are to be payable,
at the election of the Issuer or a Holder thereof, in a coin or
currency other than that in which the Securities of such series are
denominated, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(13) if the amount of payments of the principal of (and premium
or Make-Whole Amount, if any) and interest on the Securities of such
series may be determined with reference to an index based on a coin
or currency other than that in which the Securities of such series
are denominated, the manner in which such amounts shall be
determined;
(14) whether the Securities of such series will be issuable as
Registered Securities (and if so, whether such Securities will be
issuable as Registered Global Securities) or Unregistered Securities
(with or without Coupons), or any combination of the foregoing, any
restrictions applicable to the offer, sale or delivery of
Unregistered Securities or the payment of interest thereon and, if
other than as provided in Section 2.8, the terms upon which
Unregistered Securities of such series may be exchanged for
Registered Securities of such series and vice versa;
(15) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(16) any trustees, depositories, authenticating or paying
agents, transfer agents or registrars or any other agents with
respect to the Securities of such series;
(17) any additions to or deletions from the events of default or
covenants with respect to the Securities of such series;
(18) with respect to Unregistered Securities, the countries,
cities and/or newspaper or newspapers in such countries or cities in
which notices required pursuant to Sections 5.11, 6.8, 6.10(a), 6.11,
8.2, 10.4, 11.4, 12.2 and 12.5 are to be published (and, unless
otherwise specified in such Board Resolution or supplemental
indenture or any Officers' Certificate delivered pursuant thereto,
such newspaper will, if practicable, be (a) in the case of The City
of New York, The Wall Street Journal (Eastern Edition), (b) in the
case of the United Kingdom, The Financial Times (London Edition) and
(c) in the case of Luxembourg, The Luxemburger Wort); and
(19) any other terms of such series (which terms shall not
adversely affect the interests of any Holders of Securities then
Outstanding).
All Securities of any one series and Coupons, if any,
appertaining thereto shall be substantially identical, except in the case
of Registered Securities as to denomination and except as may otherwise be
provided by or pursuant to the Board Resolution or Officers' Certificate
referred to above or as set forth in any indenture supplemental hereto
referred to above. All Securities of any one series need not be issued at
the same time and may be issued from time to time, consistent with the
terms of this Indenture, if so provided by or pursuant to such Board
Resolution, such Officers' Certificate or in any such indenture
supplemental hereto.
SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES. The
Issuer may from time to time deliver Securities of any series, having
attached thereto appropriate Coupons, if any, executed by the Issuer to
the Trustee for authentication, together with the applicable documents
referred to below in this Section, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the order of the
Issuer (contained in the Issuer Order referred to below in this Section)
or pursuant to such procedures acceptable to the Trustee and to such
recipients as may be specified from time to time by an Issuer Order. If
so provided in or pursuant to the Board Resolution or supplemental
indenture establishing the Securities of any series, the maturity date,
original issue date, interest rate and any other terms of any or all of
the Securities of such series and the Coupons, if any, appertaining
thereto may be determined by or pursuant to such Issuer Order and
procedures. If provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In authenticating
such Securities and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive (but, in the case of subparagraphs 2, 3 and 4 below, only at or
before the time of the first request of the Issuer to the Trustee to
authenticate Securities of such series) and (subject to Section 6.1) shall
be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities and the Coupons, if
any, are not to be delivered to the Issuer, provided that, with
respect to Securities of a series subject to a Periodic Offering, (a)
such Issuer Order may be delivered by the Issuer to the Trustee at
any time prior to the delivery to the Trustee of the Securities of
such series for authentication and delivery, (b) the Trustee shall
authenticate and deliver the Securities of such series for original
issue from time to time, in an aggregate principal amount not
exceeding the aggregate principal amount established for such series,
pursuant to an Issuer Order or pursuant to such procedures acceptable
to the Trustee as may be specified from time to time by an Issuer
Order, (c) if so provided in or pursuant to the Board Resolution or
supplemental indenture establishing the Securities of such series,
the maturity date, original issue date, interest rate and any other
terms of any or all of the Securities of such series may be
determined by an Issuer Order or pursuant to such procedures and (d)
if provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing;
(2) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the forms and terms of the Securities of such
series and the Coupons, if any, were established;
(3) an Officers' Certificate setting forth the form or forms
and terms of the Securities of such series and the Coupons, if any,
stating that such form or forms and terms have been established
pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and
covering such other matters as the Trustee may reasonably request;
and
(4) at the option of the Issuer, either an Opinion of Counsel,
or a letter addressed to the Trustee permitting it to rely on an
Opinion of Counsel, substantially to the effect that:
(a) the forms of the Securities of such series and the
Coupons, if any, have been duly authorized and established in
conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of
the Securities of such series have been duly authorized and
established in conformity with the provisions of this Indenture,
and, in the case of an offering that is not underwritten,
certain terms of the Securities of such series have been
established pursuant to a Board Resolution, an Officers'
Certificate or a supplemental indenture in accordance with the
provisions of this Indenture and, when such other terms as are
to be established pursuant to an Issuer Order or procedures set
forth in an Issuer Order shall have been established, all such
terms will have been duly authorized by the Issuer and will have
been established in conformity with the provisions of this
Indenture;
(c) when the Securities of such series and the Coupons, if
any, have been executed by the Issuer and authenticated by the
Trustee in accordance with the provisions of this Indenture and
delivered to and duly paid for by the purchasers thereof, they
will have been duly issued under this Indenture and will be
valid and legally binding obligations of the Issuer, enforceable
in accordance with their respective terms, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity, and will
be entitled to the benefits of this Indenture;
(d) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the
Securities and Coupons, if any, will not contravene any
provision of applicable law or the certificate of incorporation
or by-laws of the Issuer or, to the best knowledge of such
counsel, (i) any agreement or other instrument binding upon the
Issuer or any of its subsidiaries that is material to the Issuer
and its subsidiaries, considered as one enterprise, or (ii) any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Issuer or any of its
subsidiaries; and
(e) no consent, approval, authorization, order,
registration or qualification of or with any governmental agency
or body having jurisdiction over the Issuer is required for the
execution and delivery of the Securities of such series by the
Issuer, except such as have been obtained (except that no
opinion need be expressed as to state securities or Blue Sky
law).
The Trustee shall have the right to decline to authenticate and
deliver any Securities of any series under this Section (other than
Securities the forms and terms of which shall have been established by
supplemental indenture) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if
the Trustee in good faith by its board of directors or board of trustees,
executive committee or a trust committee of directors, trustees or
Responsible Officers shall determine that such action would expose the
Trustee to personal liability to existing Holders or would affect the
Trustee's rights, duties or immunities under the Securities of any such
series, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more
Registered Global Securities, then the Issuer shall execute and the
Trustee shall, in accordance with this Section and the Issuer Order with
respect to such series, authenticate and deliver one or more Registered
Global Securities that (i) shall be in an aggregate amount equal to the
aggregate principal amount specified in such Issuer Order, (ii) shall be
registered in the name of the Depositary therefor or its nominee, (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to
the following effect: "Unless and until it is exchanged in whole or in
part for Securities in definitive registered form, this Security may not
be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as Depositary, be
a clearing agency registered under the Exchange Act and any other
applicable statute or regulation.
SECTION 2.5 EXECUTION OF SECURITIES. The Securities shall be
signed on behalf of the Issuer by both (a) its Chairman of the Board of
Directors or its President or any Vice President (whether or not
designated by a number or numbers or a word or words added before or after
the title "Vice President") and (b) by its Treasurer or any Assistant
Treasurer or its Secretary or any Assistant Secretary, under its corporate
seal (except in the case of Coupons) which may, but need not, be attested.
Such signatures may be the manual or facsimile signatures of the present
or any future such officers. The seal of the Issuer may be in the form of
a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or
defects in any such reproduction of the seal or any such signature shall
not affect the validity or enforceability of any Security that has been
duly authenticated and delivered by the Trustee. The Coupons, if any,
applicable to the Securities of any series shall bear the facsimile
signature of the Treasurer or any Assistant Treasurer of the Issuer.
In case any officer of the Issuer who shall have so signed any
of the Securities or Coupons, if any, shall cease to be such officer
before the Security or Coupon so signed (or the Security to which the
Coupon so signed appertains) shall be authenticated and delivered by the
Trustee or disposed of by the Issuer, such Security or Coupon nevertheless
may be authenticated and delivered or disposed of as though the person who
signed such Security or Coupon had not ceased to be such officer of the
Issuer; and any Security or Coupon may be so signed on behalf of the
Issuer by such persons as, at the actual date of the execution of such
Security or Coupon, shall be the proper officers of the Issuer, although
at the date of the execution and delivery of this Indenture any such
person was not such an officer.
SECTION 2.6 CERTIFICATE OF AUTHENTICATION. Only such
Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the Trustee by
the manual signature of one of its authorized officers, shall be entitled
to the benefits of this Indenture or be valid or obligatory for any
purpose. No Coupon shall be entitled to the benefits of this Indenture or
shall be valid and obligatory for any purpose until the certificate of
authentication on the Security to which such Coupon appertains shall have
been duly executed by the Trustee. The execution of such certificate by
the Trustee upon any Security executed by the Issuer 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.
SECTION 2.7 DENOMINATION AND DATE OF SECURITIES, PAYMENTS OF
INTEREST. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities
of any series, if not so established, in denominations of $1,000 and any
integral multiple thereof. If denominations of Unregistered Securities of
any series are not so established, such Securities shall be issuable in
denominations of $1,000 and $5,000. The Securities of each series shall
be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Issuer executing the same
may determine with the approval of the Trustee, as evidenced by the
execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as established
in or pursuant to the Board Resolution or supplemental indenture referred
to in Section 2.3. The Securities of each series shall bear interest, if
any, from the date, and such interest shall be payable on the dates,
established as contemplated by Section 2.3.
Except as may otherwise be established pursuant to Section 2.3,
the Person in whose name any Registered Security of any series is
registered at the close of business on any Record Date applicable to such
series with respect to any interest payment date for such series shall be
entitled to receive the interest, if any, payable on such interest payment
date, notwithstanding any transfer or exchange of such Registered Security
subsequent to the Record Date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date, in which case such defaulted
interest may, at the option of the Issuer, be paid to the Persons in whose
names Outstanding Registered Securities of such series are registered at
the close of business on a subsequent special Record Date (which shall be
not less than five Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on behalf of
the Issuer to the Holders of Registered Securities of such series not less
than 15 days preceding such subsequent special Record Date. The term
"Record Date", as used with respect to any interest payment date (except a
special Record Date set for payment of defaulted interest) for the
Securities of any series, shall mean the date specified as such in the
terms of the Registered Securities of such series established as
contemplated by Section 2.3.
SECTION 2.8 REGISTRATION, TRANSFER AND EXCHANGE. The Issuer
will keep, or cause to be kept, at the Corporate Trust Office or at
another office or agency to be maintained for the purpose as provided in
Section 3.2, for any series of Securities, a register (the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, it will provide for the registration of Registered Securities
of such series and the registration of transfer of Registered Securities
of such series. The Security Register shall be in written form in the
English language or in any other form capable of being converted into such
form within a reasonable time. At all reasonable times, such register not
maintained by the Trustee shall be open for inspection by the Trustee.
Unless and until otherwise determined by the Issuer pursuant to Section
2.3, the Security Register with respect to each series of Registered
Securities shall be kept solely at the Corporate Trust Office and, for
this purpose, the Trustee shall be designated the "Security Registrar."
Upon due presentation for registration of transfer of any
Registered Security of any series at any office or agency to be maintained
for the purpose as provided in Section 3.2 for such series, the Issuer
shall execute and the Trustee shall authenticate and deliver, in the name
of the transferees, a new Registered Security or Registered Securities of
the same series, maturity date and interest rate in authorized
denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached to any
temporary global Unregistered Securities) shall be transferable by
delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth
below) may be exchanged for one or more Registered Securities of such
series in authorized denominations for a like aggregate principal amount,
upon surrender of such Registered Securities to be exchanged at the office
or agency to be maintained for such purpose in accordance with Section 3.2
and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise specified for a
particular series pursuant to Section 2.3, at the option of the Holder
thereof, Unregistered Securities of any series may be exchanged for
Registered Securities of such series in authorized denominations for a
like aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the office or agency to be maintained for
such purpose in accordance with Section 3.2, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured Coupons
and all matured Coupons in default thereto appertaining, and upon payment,
if the Issuer shall so require, of the charges hereinafter provided. At
the option of the Holder thereof, if Unregistered Securities of any
series, maturity date, interest rate and original issue date are issued in
more than one authorized denomination, except as otherwise specified for a
particular series pursuant to Section 2.3, such Unregistered Securities
may be exchanged for other Unregistered Securities of such series in
authorized denominations for a like aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the office or
agency to be maintained for such purpose in accordance with Section 3.2 or
as specified for a particular series pursuant to Section 2.3, with, in the
case of Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges hereinafter
provided. Unless otherwise specified for a particular series pursuant to
Section 2.3, Registered Securities of any series may not be exchanged for
Unregistered Securities of such series. Whenever any securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive. All Securities and Coupons surrendered
upon any exchange or transfer provided for in this Indenture shall be
promptly cancelled and disposed of (subject to the record retention
requirements of the Exchange Act) by the Trustee and the Trustee will
deliver a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall be (if so required by the
Issuer or the Trustee) duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Issuer
and the Trustee duly executed by the Holder or his attorney duly
authorized in writing.
The Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with
any exchange or registration of transfer of Securities. No service charge
shall be made for any such transaction.
The Issuer shall not be required to (a) issue, exchange or
register a transfer of any Securities of any series for a period of 15
days next preceding the first mailing or publication of notice of
redemption of Securities of such series to be redeemed, (b) exchange or
register the transfer of any Securities selected, called or being called
for redemption in whole or in part, except, in the case of any Security to
be redeemed in part, the portion thereof not so to be redeemed or (c)
register the transfer of or exchange any Security if the Holder thereof
has exercised his right, if any, to require the Issuer to repurchase such
Security, in whole or in part, except the portion of such Security
required to be repurchased.
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a
portion of the Securities of a series may not be transferred except as a
whole by the Depositary for such Registered Global Security to a nominee
of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such
nominee to a successor Depositary for such Registered Global Security or a
nominee of such successor Depositary.
If, at any time, a Depositary for any Registered Securities of a
series represented by one or more Registered Global Securities notifies
the Issuer that it is unwilling or unable to continue as Depositary for
such Registered Securities or if, at any time, any such Depositary shall
no longer be eligible under Section 2.4, the Issuer shall appoint a
successor Depositary with respect to the Registered Securities held by
such Depositary. If a successor Depositary is not appointed by the Issuer
within 90 days after the Issuer receives such notice or becomes aware of
such ineligibility, the Registered Securities of such series shall no
longer be represented by one or more Registered Global Securities held by
such Depositary, and the Issuer shall execute, and the Trustee, upon
receipt of an Issuer Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and deliver
Securities of such series in definitive registered form without Coupons,
in any authorized denominations and in an aggregate principal amount equal
to the principal amount of the Registered Security or Securities held by
such Depositary in exchange for such Registered Global Security or
Securities.
Within seven days after the occurrence of an Event of Default
specified in clause (a), (b) or (c) of Section 5.1 with respect to any
series of Securities that is, in whole or in part, represented by a
Registered Global Security, the Issuer shall execute, and the Trustee
shall authenticate and deliver, Securities of such series in definitive
registered form without Coupons, in any authorized denominations and in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing Registered Securities of such
series in exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine
that the Registered Securities of a particular series shall no longer be
represented by a Registered Global Security or Securities. In such event,
the Issuer shall execute, and the Trustee, upon receipt of an Issuer Order
for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, Securities of such series in
definitive registered form without Coupons, in any authorized
denominations and in an aggregate principal amount equal to the principal
amount of the Registered Global Security or Securities representing
Registered Securities of such series in exchange for such Registered
Global Security or Securities.
If so specified by the Issuer pursuant to Section 2.3 with
respect to Securities of a particular series represented by a Registered
Global Security, the Depositary for such Registered Global Security may
surrender such Registered Global Security in exchange in whole or in part
for Securities of such series in definitive registered form on such terms
as are acceptable to the issuer and such Depositary. Thereupon, the
Issuer shall execute, and the Trustee shall authenticate and deliver:
(i) to each Person specified by such Depositary a new
Registered Security or securities of such series, in any
authorized denominations requested by such Person, in an
aggregate principal amount equal to, and in exchange for, such
Person's beneficial interest in the Registered Global Security;
and
(ii) to such Depositary a new Registered Global security in
a denomination equal to the difference between the principal
amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of any Registered Global Security for
Securities in definitive registered form without Coupons, in authorized
denominations, such Registered Global Security shall be canceled by the
Trustee or an agent of the Issuer or the Trustee. Securities in
definitive registered form without Coupons issued in exchange for a
Registered Global Security pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such
Registered Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee or an agent
of the Issuer or the Trustee. The Trustee or such agent shall deliver
such Securities to or as directed by the Persons in whose names such
Securities are so registered.
All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent
of the Issuer or the Trustee (any of which, other than the Issuer, shall
rely on an Officers' Certificate and an Opinion of Counsel) shall be
required to exchange any Unregistered Security for a Registered Security
if such exchange would result in adverse Federal income tax consequences
to the Issuer (such as, for example, the inability of the Issuer to deduct
from its income, as computed for Federal income tax purposes, the interest
payable on the Unregistered Securities) under then applicable United
States Federal income tax laws.
SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN
SECURITIES. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Issuer shall execute and, upon receipt of
an Issuer Order, the Trustee shall authenticate and deliver a new Security
of the same series, maturity date, interest rate and original issue date,
bearing a number or other distinguishing symbol not contemporaneously
outstanding, in exchange and substitution for the mutilated or defaced
Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen, with Coupons corresponding to the Coupons appertaining to
the Securities so mutilated, defaced, destroyed, lost or stolen, or in
exchange or substitution for the Security to which such mutilated,
defaced, destroyed, lost or stolen Coupon appertained, with Coupons
appertaining thereto corresponding to the Coupons so mutilated, defaced,
destroyed, lost or stolen. In every case the applicant for a substitute
Security or Coupon shall furnish to the Issuer and to the Trustee and any
agent of the Issuer or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless
and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security or Coupon
and of the ownership thereof and, in the case of mutilation or defacement,
shall surrender the Security and related Coupons to the Trustee or such
agent.
Upon the issuance of any substitute Security or Coupon, the
Issuer 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 or its
agent) connected therewith. In case any Security or Coupon which has
matured or is about the mature or has been called for redemption in full
shall become mutilated or defaced or be destroyed, lost or stolen, the
Issuer may, instead of issuing a new or substitute Security, pay or
authorize the payment of the same or the relevant Coupon (without
surrender thereof except in the case of a mutilated or defaced Security or
Coupon), if the applicant for such payment shall furnish to the Issuer and
to the Trustee and any agent of the Issuer or 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, evidence of their
satisfaction of the destruction, loss or theft of such Security or Coupon
and of the ownership thereof and, in the case of mutilation or defacement,
shall surrender the Security and related Coupons to the Trustee or such
agent.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact that any
such Security or Coupon is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer, whether or not the
destroyed, lost or stolen Security or Coupon shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities or
Coupons of such series duly authenticated and delivered hereunder. All
Securities and Coupons shall be held and owed upon the express condition
that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated,
defaced, destroyed, lost or stolen Securities and Coupons and shall
preclude 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 2.10 CANCELLATION OF SECURITIES; DISPOSITION THEREOF.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if surrendered to the Issuer or
any agent of the Issuer or any agent of the Trustee, shall be delivered to
the Trustee or its agent for cancellation or, if surrendered to the
Trustee, shall be canceled by it; and no Securities or Coupons shall be
issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee or its agent shall dispose of
canceled Securities and Coupons held by it (subject to the record
retention requirements of the Exchange Act) and deliver a certificate of
disposition to the Issuer. If the Issuer or its agent shall acquire any
of the Securities or Coupons, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such
Securities or Coupons unless and until the same are delivered to the
Trustee or its agent for cancellation.
SECTION 2.11 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the
Trustee shall authenticate and deliver temporary Securities for such
series (printed, lithographed, typewritten or otherwise reproduced, in
each case in form satisfactory to the Trustee). Temporary Securities of
any series shall be issuable as Registered Securities without Coupons, or
as Unregistered Securities with or without Coupons attached thereto, of
any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may
be determined by the Issuer with the concurrence of the Trustee as
evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture
as may be appropriate. Every temporary Security shall be executed by the
Issuer and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay, the Issuer shall execute and
shall furnish definitive Securities of such series and thereupon temporary
Registered Securities of such series may be surrendered in exchange for
such definitive Securities in registered form without charge at each
office or agency to be maintained for such purpose in accordance with
Section 3.2 and, in the case of Unregistered Securities, at any office or
agency to be maintained for such purpose as specified pursuant to Section
2.3, and the Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal amount of
definitive Securities of the same series in authorized denominations and,
in the case of Unregistered Securities, having attached thereto any
appropriate Coupons. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless otherwise established
pursuant to Section 2.3. The provisions of this Section are subject to
any restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any series that may be established pursuant to
Section 2.3 (including any provision that Unregistered Securities of such
series initially be issued in the form of a single global Unregistered
Security to be delivered to a depositary or agency located outside the
United States and the procedures pursuant to which definitive Unregistered
Securities of such series would be issued in exchange for such temporary
global Unregistered Security).
ARTICLE III
COVENANTS OF THE ISSUER
SECTION 3.1 PAYMENT OF PRINCIPAL, IF ANY, AND INTEREST. The
Issuer covenants and agrees for the benefit of each series of Securities
that it will duly and punctually pay or cause to be paid the principal of
(and premium or Make-Whole Amount, if any), and interest on, each of the
Securities of such series (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and in the
Coupons, if any, appertaining thereto and in this Indenture. The interest
on Securities with Coupons attached (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only
upon presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid
while in temporary form, the interest on any such temporary Unregistered
Security (together with any additional amounts payable pursuant to the
terms of such Security) shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any,
only upon presentation of such temporary Unregistered Security for
notation thereon of the payment of such interest, in each case subject to
any restrictions that may be established pursuant to Section 2.3. The
interest on Registered Securities (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only to
or upon the written order of the Holders thereof and, at the option of the
Issuer (unless otherwise specified in such Securities), may be paid by
wire transfer or by mailing checks for such interest payable to or upon
the written order of such Holders at their last addresses as they appear
on the Security Register.
Principal and interest shall be considered paid on the date due
if on such date the Trustee or the paying agent holds in accordance with
this Indenture money sufficient to pay all principal and interest then due
and the Trustee or the paying agent, as the case may be, is not prohibited
pursuant to the terms of this Indenture from paying such money to the
Securityholders on that date.
SECTION 3.2 OFFICES FOR PAYMENT, ETC. So long as any
Registered Securities are outstanding hereunder, the Issuer will maintain
in the Borough of Manhattan, The City of New York, an office or agency
where the Registered Securities of each series may be presented for
payment, where the Securities of each series may be presented for exchange
as in this Indenture provided and where the Registered Securities of each
series may be presented for registration of transfer as in this Indenture
provided.
In the event that the Issuer shall issue any Unregistered
Securities, it will maintain one or more offices or agencies in a city or
cities located outside the United States (including any city in which such
an office or agency is required to be maintained under the rules of any
stock exchange on which the Securities of any series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any,
appertaining thereto may be presented for payment. No payment on any
Unregistered Security or Coupon will be made upon presentation of such
Unregistered Security or Coupon at an office or agency of the Issuer
within the United States, nor will any payment be made by transfer to an
account in, or by mail to an address in, the United States unless pursuant
to applicable United States laws and regulations then in effect such
payment can be made without adverse tax consequences to the Issuer.
Notwithstanding the foregoing, payments in Dollars on Unregistered
Securities of any series and Coupons appertaining thereto which are
payable in Dollars may be made at an office or agency of the Issuer
maintained in the Borough of Manhattan, The City of New York, if such
payment in Dollars at each office or agency maintained by the Issuer
outside the United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Issuer will maintain, in the Borough of Manhattan, The City
of New York, an office or agency where notices and demands to or upon the
Issuer in respect of the Securities of any series, the Coupons
appertaining thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of the
location of each such office or agency and of any change of location
thereof. In case the Issuer shall fail to maintain any office or agency
required by this Section to be located in the Borough of Manhattan, The
City of New York, or shall fail to give such notice of the location or of
any change in the location of any of the above offices or agencies,
presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of any series and any
Coupons appertaining thereto may be presented for payment, where the
Securities of such series may be presented for exchange as in this
Indenture provided and where the Registered Securities of such series may
be presented for registration of transfer as in this Indenture provided,
and the Issuer may from time to time rescind any such designation;
provided, however, that no such designation or rescission shall in any
manner relieve the Issuer of its obligation to maintain any office or
agency required to be provided for in this Section. The issuer will give
to the Trustee prompt written notice of any such designation or rescission
thereof.
SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF
TRUSTEE. The Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee with respect to
each series of Securities hereunder.
SECTION 3.4 PAYING AGENTS. Whenever the Issuer shall appoint
a paying agent other than the Trustee with respect to the Securities of
any series, it will cause 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:
(a) that it will hold all sums received by it as such agent for
the payment of the principal of or interest on the Securities of such
series (whether such sums have been paid to it by the Issuer or by
any other obligor on the Securities of such series) in trust for the
benefit of the Holders of the Securities of such series and the
Coupons appertaining thereto, if any, or of the Trustee, and
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to
make any payment of the principal of or interest on the Securities of
such series when the same shall be due and payable, and
(c) that at any time during the continuance of any such failure
referred to in the foregoing paragraph (b), it will, upon written
request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such agent; and
(d) that it will perform all other duties of the paying agent
as set forth in this Indenture.
The Issuer will, on or prior to each due date of the principal
of or interest on the Securities of any series, deposit with the paying
agent a sum sufficient to pay such principal or interest so becoming due,
and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to
the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Holders of the
Securities of such series or the Coupons, if any, appertaining thereto a
sum sufficient to pay such principal or interest so becoming due. The
Issuer will promptly notify the Trustee of any failure to take such
action.
Anything in this section to the contrary notwithstanding, but
subject to Section 10.1, the Issuer may at any time, for the purpose of
obtaining a satisfaction and discharge with respect to one or more or all
series of Securities hereunder, or for any other reason, pay or cause to
be paid to the Trustee all sums held in trust for any such series by the
Issuer or any paying agent hereunder, as required by this Section, such
sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to
the provisions of Sections 10.3 and 10.4.
SECTION 3.5 WRITTEN STATEMENT TO TRUSTEE. The Issuer will
deliver to the Trustee on or before April 30 in each year (beginning with
April 30, 1998) an Officers' Certificate (which need not comply with
Section 11.5) stating that, in the course of the performance by the
signers of their duties as officers of the Issuer, they would normally
have knowledge of any default by the Issuer in the performance of any
covenants contained in this Indenture, stating whether or not they have
knowledge of any such default and, if so, specifying each such default of
which the signers have knowledge and the nature thereof.
SECTION 3.6 LIMITATION ON SECURED DEBT. So long as any of the
Securities remain Outstanding, neither the Issuer nor any Restricted
Subsidiary will create, assume, incur or guarantee any Secured Debt
without in any such case effectively providing, concurrently with the
assumption, creation, incurrence or guarantee of any such Secured Debt,
that the Securities then Outstanding (together with, if the Issuer shall
so determine, any other Debt of or guaranteed by the Issuer or any
Restricted Subsidiary ranking equally with the Securities and then
existing or thereafter created) shall be secured equally and ratably with
(or, at the option of the Issuer, prior to) such Secured Debt, unless,
immediately after the incurrence of such Secured Debt (and after giving
effect to the application of the proceeds, if any, therefrom), the
aggregate principal amount of all such Secured Debt, together with the
aggregate amount of Capitalized Rent in respect of Sale and Leaseback
Transactions (other than Sale and Leaseback Transactions described in
clauses (a) to (e), inclusive, of Section 3.7), would not exceed 10% of
Consolidated Capitalization; provided, however, that the foregoing
restrictions shall not apply to, and there shall be excluded in computing
Secured Debt for the purpose of such restrictions, Secured Debt secured
by:
(a) Liens on Property existing at the time of acquisition of
such Property by the Issuer or any Restricted Subsidiary, or Liens to
secure the payment of all or any part of the purchase price of
Property acquired or constructed by the Issuer or any Restricted
Subsidiary (including any improvements to existing Property) created
at the time of or within 270 days following the acquisition of such
Property, which Secured Debt is incurred for the purpose of financing
all or any part of the purchase or construction price thereof;
provided, however, that in the case of any such acquisition, the Lien
shall not apply to any Property theretofore owned by the Issuer or
any Restricted Subsidiary (including Property transferred by the
Issuer to any Subsidiary or by any Restricted Subsidiary to the
Issuer or another Subsidiary in contemplation of or in connection
with the creation of such Lien) or to any Property of the Issuer or
any Restricted Subsidiary other than the Property so acquired (other
than, in the case of construction or improvement, any theretofore
unimproved real Property or portion thereof on which the Property so
constructed, or the improvement, is located);
(b) Liens on Property of a Person (i) existing at the time such
Person is merged into or consolidated with the Issuer or any
Restricted Subsidiary or at the time of a sale, lease or other
disposition of the Properties of a Person as an entirety or
substantially as an entirety to the Issuer or any Restricted
Subsidiary, (ii) resulting from such merger, consolidation, sale,
lease or disposition by virtue of any Lien on Property granted by the
Issuer prior to such merger, consolidation, sale, lease or
disposition (and not in contemplation thereof or in connection
therewith) which applies to after-acquired Property of the Issuer or
any Restricted Subsidiary or, (iii) resulting from such merger,
consolidation, sale, lease or disposition pursuant to a Lien or
contractual provision granted or entered into by such Person prior to
such merger, consolidation, sale, lease or disposition (and not at
the request of the Issuer); provided, however, that any such Lien
referred to in clause (i) shall not apply to any Property of the
Issuer or any Restricted Subsidiary other than the Property subject
thereto at the time such Person or properties were acquired and any
such Lien referred to in clause (ii) or (iii) shall not apply to any
Property of the Issuer or any Restricted Subsidiary other than the
Property so acquired;
(c) Liens existing on the date of this Indenture;
(d) Liens in favor of a government or governmental entity to
secure partial progress, advance or other payments, or other
obligations, pursuant to any contract or statute or to secure any
Debt incurred for the purpose of financing all or any part of the
cost of acquiring, constructing or improving the Property subject to
such Liens (including, without limitation, Liens incurred in
connection with pollution control, industrial revenue or private
activity bonds or similar financing);
(e) Liens arising by reason of deposits with, or the giving of
any form of security to, any governmental agency or any body created
or approved by law or governmental regulation, which Lien is required
by law or governmental regulation as a condition to the transaction
of any business or the exercise of any privilege, franchise, license
or permit;
(f) Liens for taxes, assessments or governmental charges or
levies not yet delinquent or governmental charges or levies already
delinquent, the validity of which charge or levy is being contested
in good faith and for which any reserves required in accordance with
generally accepted accounting principles have been established;
(g) Judgment liens for which execution thereon is stayed and
for which any reserves required in accordance with generally accepted
accounting principles have been established; and
(h) Any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien
referred to in the foregoing clauses (a) to (g), inclusive; provided,
however, that the principal amount of Secured Debt secured thereby
shall not exceed the principal amount of Secured Debt secured thereby
at the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or a part
of the Property which secured the Lien so extended, renewed or
replaced (plus improvements to such Property).
SECTION 3.7 LIMITATION ON SALE AND LEASEBACK. So long as any
of the Securities remain Outstanding, neither the Issuer nor any
Restricted Subsidiary will enter into any Sale and Leaseback Transaction
unless immediately thereafter (and after giving effect to the application
of the proceeds, if any, therefrom), the aggregate amount of Capitalized
Rent in respect of Sale and Leaseback Transactions, together with the
aggregate principal amount of all Secured Debt (other than Secured Debt
described in clauses (a) to (h), inclusive, of Section 3.6), would not
exceed 10% of Consolidated Capitalization; provided, however, that the
foregoing restrictions shall not apply to, and there shall be excluded in
computing the aggregate amount of Capitalized Rent for the purpose of such
restrictions, the following Sale and Leaseback Transactions:
(a) any Sale and Leaseback Transaction entered into to finance
the payment of all or any part of the purchase price of Property
acquired or constructed by the Issuer or any Restricted Subsidiary
(including any improvements to existing Property) or entered into
prior to, at the time of or within 270 days after the acquisition or
construction of such Property, which Sale and Leaseback Transaction
is entered into for the purpose of financing all or part of the
purchase or construction price thereof; provided, however, that in
the case of any such acquisition, such Sale and Leaseback Transaction
shall not involve any Property transferred by the Issuer to any
Subsidiary or by any Restricted Subsidiary to the Issuer or another
Subsidiary in contemplation of or in connection with such Sale and
Leaseback Transaction or involve any Property of the Issuer or any
Restricted Subsidiary other than the Property so acquired (other
than, in the case of construction or improvement, any theretofore
unimproved real Property or portion thereof on which the Property so
constructed, or the improvement, is located);
(b) any Sale and Leaseback Transaction involving Property of a
Person existing at the time such Person is merged into or
consolidated with the Issuer or any Restricted Subsidiary or at the
time of a sale, lease or other disposition of the properties of a
Person as an entirety or substantially as an entirety to the Issuer
or any Restricted Subsidiary;
(c) any Sale and Leaseback Transaction in which the lessor is a
government or governmental entity and which Sale and Leaseback
Transaction is entered into to secure partial progress, advance or
other payments, or other obligations, pursuant to any contract or
statute or to secure any Debt incurred for the purpose of financing
all or any part of the cost of constructing or improving the Property
subject to such Sale and Leaseback Transaction (including, without
limitation, a Sale and Leaseback Transaction incurred in connection
with pollution control, industrial revenue, private activity bond or
similar financing);
(d) any Sale and Leaseback Transaction involving the extension,
renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part of a lease pursuant to a Sale and
Leaseback Transaction referred to in the foregoing clauses (a) to
(c), inclusive; provided, however, that such lease extension, renewal
or replacement shall be limited to all or any part of the same
Property leased under the lease so extended, renewed or replaced
(plus improvements to such Property); and
(e) any Sale and Leaseback Transaction the net proceeds of
which are at least equal to the fair value (as determined by the
Board of Directors) of the Property leased pursuant to such Sale and
Leaseback Transaction, so long as within 270 days of the effective
date of such Sale and Leaseback Transaction, the Issuer or any
Restricted Subsidiary, as the case may be, applies (or irrevocably
commits to an escrow account for the purpose or purposes hereinafter
mentioned) an amount equal to the net proceeds of such Sale and
Leaseback Transaction to either (x) the purchase of other Property
having a fair value at least equal to the fair value of the Property
leased in such Sale and Leaseback Transaction and having a similar
utility and function, or (y) the retirement or repayment (other than
any mandatory retirement or repaying at maturity) of Securities,
provided, however, that in lieu of applying an amount equivalent to
all or any part of such net proceeds to such retirement or repayment
(or committing such an amount to an escrow account for such purpose),
the Issuer may deliver to the Trustee Outstanding Securities and
thereby reduce the amount to be applied pursuant to (y) of this
clause (e) by an amount equivalent to the aggregate principal amount
of the Securities so delivered.
SECTION 3.8 EXISTENCE. Subject to Article IX, the Issuer will
do or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights and franchises; provided, however,
that the Issuer shall not be required to preserve any right or franchise
if the Board of Directors shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the Issuer and that
the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 3.9 MAINTENANCE OF PROPERTIES. The Issuer will cause
all of its properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and
will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Issuer
may be necessary so that the business carried on in connection therewith
may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Issuer or any
Subsidiary from selling or otherwise disposing for value its properties in
the ordinary course of its business.
SECTION 3.10 INSURANCE. The Issuer will, and will cause each
of its Subsidiaries to, keep all of its insurable properties insured
against loss or damage at least equal to their then full insurable value
with financially sound and reputable insurers.
SECTION 3.11 PAYMENT OF TAXES AND OTHER CLAIMS. The Issuer
will pay or discharge or cause to be paid or discharged, before the same
shall become delinquent, (a) all taxes, assessments and governmental
charges levied or imposed upon it or any Subsidiary or upon the income,
profits or Property of the Issuer or any Subsidiary, and (b) all lawful
claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the Property of the Issuer or any Subsidiary; provided,
however, that the Issuer shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
SECURITYHOLDERS. The Issuer and any other obligor on the Securities
covenant and agree that they will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of the Registered Securities of each
series:
(a) semi-annually and not more than 15 days after each Record
Date for the payment of interest on such Registered Securities, as of
such Record Date and on dates to be determined pursuant to Section
2.3 for non-interest bearing Registered Securities, in each year, and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request, as of
a date not more than 15 days prior to the time such information is
furnished,
provided that if and so long as the Trustee shall be the Security
Registrar for such series and all of the Securities of such series
are Registered Securities, such list shall not be required to be
furnished.
SECTION 4.2 PRESERVATION AND DISCLOSURE OF SECURITY-HOLDERS
LISTS.
(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 each series of Registered Securities (i) contained
in the most recent list furnished to it as provided in Section 4.1,
(ii) received by it in the capacity of Security Registrar for such
series, if so acting, and (iii) filed with it within the two
preceding years pursuant to Section 4.4(c)(ii). The Trustee may
destroy any list furnished to it as provided in Section 4.1 upon
receipt of a new list so furnished.
(b) 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 applicants desire to communicate with other Holders of
Securities of a particular series (in which case the applicants must
all hold Securities of such series) or with Holders of all Securities
and such application 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
(i) 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
(ii) inform such applicants as to the approximate number of
Holders of Registered Securities of such series or all of Registered
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 such subsection (a) and as to the approximate
cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Holder of such series or all
Holders of Registered Securities, whose name and address appears in
the information preserved at the time by the Trustee in accordance
with the provisions of such subsection (a) a copy of the form of
proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material
to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such
tender the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interests of the Holders
of Registered Securities of such series or of all Registered
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 the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or
if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity
for hearing, that all the objections so sustained have been met, and
shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and every Holder of Securities and Coupons, by
receiving and holding the same, agrees with the Issuer and the
Trustee that neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee 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 will not be held
accountable by reason of mailing any material pursuant to a request
made under such subsection (b).
(d) The Issuer shall, upon written request to the Trustee (or,
if applicable, the Security Registrar), be entitled to receive a list
of the Holders of any and all series of Registered Securities.
SECTION 4.3 REPORTS BY THE ISSUER. The Issuer covenants and
agrees:
(a) to file with the Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the
Issuer may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or if the Issuer is
not required to file information, documents or reports pursuant to
either of such Sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and
periodic information, documents, and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a debt
security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Issuer with the conditions and covenants
provided for in this Indenture as may be required from time to time
by such rules and regulations; and
(c) to transmit by mail to the Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and to
the extent provided in Section 4.4(c), such summaries of any
information, documents and reports required to be filed by the Issuer
pursuant to subsections (a) and (b) of this Section as may be
required to be transmitted to such Holders by rules and regulations
prescribed from time to time by the Commission.
SECTION 4.4 REPORTS BY THE TRUSTEE.
(a) Within 60 days after May 15 of each year, commencing with
the year 1998, the Trustee shall transmit by mail to the Holders of
the Securities of each series, as provided in subsection (c) of this
Section, a brief report dates as of such May 15 with respect to:
(i) its eligibility under Section 6.9 and its
qualification under Section 6.8, or in lieu thereof, if to the best
of its knowledge it has continued to be eligible and qualified under
such Sections, a written statement to such effect;
(ii) 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 of such
series, on any Property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate
not more than 1/2 of 1% of the principal amount of the Securities of
such series Outstanding on the date of such report;
(iii) the amount, interest rate and maturity date of all
other indebtedness owing by the Issuer (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 Section
6.13(b)(2), (3), (4) or (6);
(iv) the Property and funds, if any, physically in the
possession of the Trustee (as such) on the date of such report;
(v) any additional issue of Securities which the Trustee
has not previously reported; and
(vi) 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 of such
series, except 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 5.11.
(b) The Trustee shall transmit to the Holders of each series,
as provided in subsection (c) of this Section, a brief report with
respect to the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee, as such, since the date of the last
report transmitted pursuant to the provisions of subsection (a) of
this Section (or if no such report has yet been so transmitted, since
the date of this Indenture) for the reimbursement of which it claims
or may claim a lien or charge, prior to that of the Securities of
such series, on Property or funds held or collected by it as Trustee
and which it has not previously reported pursuant to this subsection
(b), except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Securities of
such series outstanding at such time, such report to be transmitted
within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by
mail:
(i) to all Holders of Registered Securities, as the names
and addresses of such Holders appear upon the registry books of the
Issuer;
(ii) to such other Holders of Securities as have, within
two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and
(iii) except in the case of reports pursuant to subsection
(b), to each Holder of a Security whose name and address are
preserved at the time by the Trustee as provided in Section 4.2(a).
(d) A copy of each such report shall, at the time of such
transmission to the Holders, be furnished to the Issuer and be filed
by the Trustee with each stock exchange, if any, upon which the
Securities of any series are listed and also with the Commission.
The Issuer agrees to notify the Trustee when and as the Securities of
such series become admitted to trading on any national securities
exchange.
SECTION 4.5 PUBLICATION OF CERTAIN NOTICES. In the event of
the publication of any notice pursuant to Section 5.11, 6.8, 6.10(a),
6.11, 8.2, 10.4, 11.4, 12.2 or 12.5, the party making such publication
shall also, to the extent that notice is required to be given to Holders
of Securities of any series by applicable law or stock exchange
regulation, as evidenced by an Officers' Certificate delivered to such
party, make a similar publication in the place or places so required
thereby.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF
MATURITY; WAIVER OF DEFAULT. "Event of Default" with respect to
Securities of any series, wherever used herein, means each of the
following events which shall have occurred and be continuing (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) 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, whether at maturity, upon any redemption, by
declaration or otherwise;
(b) default in the payment of all or any part of the principal
of any of the Securities of such series as and when the same shall
become due and payable, whether at maturity, upon any redemption, by
declaration or otherwise; or
(c) default in the deposit of any sinking fund or analogous
payment for the benefit of the Securities of such series as and when
the same shall become due and payable;
(d) failure on the part of the Issuer duly to observe or
perform or to cause its Subsidiaries duly to observe and perform any
other of the covenants or agreements on the part of the Issuer and
its Subsidiaries in the Securities of such series or in this
Indenture contained (other than a covenant or agreement expressly
included herein solely for the benefit of Securities of other series)
for a period of 90 days after the date on which written notice
specifying such failure, stating that such notice is a "Notice of
Default" hereunder and demanding that the Issuer or one or more
Subsidiaries, as the case may be, remedy the same, shall have been
given (i) (A) in person to the Chairman, the President, the Chief
Financial Officer or the Treasurer of the Issuer promptly followed by
notice by registered or certified mail, return receipt requested, by
the Trustee, or (B) by registered or certified mail, return receipt
requested, to the Issuer by the Trustee, or (ii) by registered or
certified mail, return receipt requested, to the Issuer and the
Trustee by the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of all series affected thereby;
or
(e) (i) a default occurs under any instrument (including this
Indenture) under which there is at the time outstanding, or by which
there may be secured or evidenced, any indebtedness of the Issuer or
any Restricted Subsidiary for money borrowed by the Issuer or any
Restricted Subsidiary (other than non-recourse indebtedness) which
results in acceleration (whether by declaration or automatically) of,
or the nonpayment at maturity (after giving effect to any applicable
grace period) of, such indebtedness in an aggregate amount exceeding
$10,000,000 or, if greater, 10% of Consolidated Capitalization, in
which case the Issuer shall immediately give notice to the Trustee of
such acceleration or non-payment and (ii) there shall have been a
failure to cure such default or to discharge all such defaulted
indebtedness within ten days after notice thereof to the Issuer by
the Trustee or to the Issuer and the Trustee by the Holders of at
least 25% in principal amount of the Securities then Outstanding
(excluding, if such defaulted indebtedness includes any series of
Securities, such series of Securities) and such acceleration shall
not be rescinded or annulled.
(f) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer or any
Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Issuer or any
Significant Subsidiary or for any substantial part of the Property of
the Issuer or any Significant Subsidiary, or ordering the winding up
or liquidation of the affairs of the Issuer, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days; or
(g) the Issuer or any Significant Subsidiary shall commence a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or
consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Issuer or any Significant Subsidiary or for any
substantial part of the Property of the Issuer or any Significant
Subsidiary, or make any general assignment for the benefit of
creditors; or
(h) any other Event of Default provided in or pursuant to the
supplemental indenture or Board Resolution establishing the terms of
such series of Securities as provided in Section 2.3 or in the form
of Security for such series.
If an Event of Default described in clause (a), (b) or (c) shall have
occurred and be continuing with respect to the Securities of any
series, then, and in each and every such case, unless the principal
of all of the Securities of such 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 such series then
Outstanding, by notice in writing to the Issuer (and to the Trustee
if given by such Holders), may declare the entire principal of all
the Securities of such series then Outstanding and the interest
accrued thereon to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. If an
Event of Default described in clause (d) or (h) (if the Event of
Default under either clause is with respect to less than all series
of the Securities then Outstanding) shall have occurred and be
continuing with respect to the Securities of one or more series, then
and in each and every such case, unless the principal of all of the
Securities of such 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 all series affected thereby
then Outstanding (voting as one class), by notice in writing to the
Issuer (and to the Trustee if given by such Holders), may declare the
entire principal of all the Securities of all such affected series
then Outstanding and the interest accrued thereon to be due and
payable immediately, and upon any such declaration the same shall
become immediately due and payable. If an Event of Default described
in clause (d) or (h) (if the Event of Default under either clause is
with respect to all series of Securities then Outstanding) or
described in clause (e) shall have occurred and be continuing, then,
and in each and every such case, unless the principal of all the
Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal
amount of all the Securities then Outstanding (voting as one class),
by notice in writing to the Issuer (and to the Trustee if given by
such Holders), may declare the entire principal of all the Securities
then Outstanding and interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall
become immediately due and payable. If an Event of Default described
in clause (f) or (g) shall have occurred and be continuing, the
principal of and interest on all the Securities then Outstanding
shall thereby become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any
Securityholders.
The foregoing paragraph, however, is subject to the condition
that if, at any time after the principal of the Securities of one or more
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 Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Securities of such series and the principal of
all Securities of such series which shall have become due otherwise than
by acceleration (with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest (or
Yield to Maturity, in the case of Original Issue Discount Securities)
specified in the Securities of such series, to the date of such payment or
deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of negligence or bad faith, and if any and all
Events of Default under this Indenture with respect to such series, other
than the non-payment of the principal of Securities of such series which
shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein -- then, and in every such case, the
Holders of a majority in aggregate principal amount of all of the
Securities of such affected series then Outstanding (voting as one class,
except in the case of Events of Default described in clauses (a), (b) and
(c) of such paragraph, in which case each series of Securities as to which
such an Event of Default shall have occurred shall vote as a separate
class), by written notice to the Issuer and to the Trustee, may waive all
defaults with respect to such series and rescind and annul such
declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereto.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions
hereof, then, from and after such declaration, unless such declaration has
been rescinded and annulled, the principal amount of such Original Issue
Discount Securities shall be deemed, for all purposes hereunder, to be
such portion of the principal thereof as shall be due and payable as a
result of such acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such acceleration,
together with interest, if any, thereon and all other amounts owing
thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 5.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY
PROVE DEBT. The Issuer covenants that (a) in case default shall be made
in the payment of any installment of interest on any of the Securities of
any series when such interest shall have become due and payable, and such
default shall have continued for a period of 30 days, or (b) in case
default shall be made in the payment of all or any part of the principal
of any of the Securities of any series when the same shall have become due
and payable, whether at maturity, upon redemption, by declaration or
otherwise--then, upon demand of the Trustee, the Issuer will pay to the
Trustee for the benefit of the Holders of the Securities of such series
the whole amount that then shall have become due and payable on all
Securities of such series, including all Coupons, for principal or
interest, as the case may be (with interest to the date of such payment
upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest (or Yield to Maturity,
in the case of Original Issue Discount Securities) specified in the
Securities of such series); and in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee, its agents, attorneys
and counsel, and any expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of such series to the Holders,
whether or not the Securities of such series be overdue.
In case the Issuer 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 proceedings to judgment or
final decree, and may enforce any such judgment or final decree against
the Issuer or other obligor upon the Securities of such series and collect
in the manner provided by law out of the Property of the Issuer or other
obligor upon the Securities of such series, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities of any series under Title
11 of the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or its Property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or
such other Obligor, or to the creditors or Property of the Issuer or such
other obligor, the Trustee, irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
the principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the Securities as each series, and to file such
other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and its agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and
all advances made, by the Trustee, except as a result of negligence
or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer of such other obligor, or to the
creditors or Property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities of each series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other Property payable
or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the
Trustee on their behalf; and any trustee, receiver, liquidator,
custodian or other similar official is hereby authorized by each of
the Securityholders to make payments to the Trustee, and, in the
event that the Trustee shall consent to the making of payments
directly to the Securityholder, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
and its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee except as
a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of any series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding except, as aforesaid, to vote
for the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or Coupons
appertaining thereto, may be enforced by the Trustee without the
possession of any of the Securities of such series or Coupons appertaining
thereto or the production thereof on any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Trustee and its agents, attorneys
and counsel, shall be for the ratable benefit of the Holders of the
Securities or Coupons appertaining to such Securities in respect of which
such action was taken.
In any proceeding brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party) the Trustee shall be held
to represent all the Holders of the Securities and Coupons appertaining
thereto in respect to which action was taken, and it shall not be
necessary to make any Holder of such Securities or Coupons parties to any
such proceedings.
SECTION 5.3 APPLICATION OF PROCEEDS. Any moneys collected by
the Trustee pursuant to this Article in respect of the Securities of any
series shall be applied in the following order at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on account
of principal or interest, upon presentation of the several Securities and
Coupons appertaining thereto in respect of which moneys have been
collected and stamping (or otherwise noting) thereon the payment, or
issuing Securities of the same series in reduced principal amounts in
exchange for the presented Securities if only partially paid, or upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection
applicable to such series, including reasonable compensation to the
Trustee and its agents, attorneys and counsel and of all expenses and
liabilities incurred, and all advances made, by the Trustee, except
as a result of negligence or bad faith;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest (or
Yield to Maturity, in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal
and interest, with interest upon the overdue principal, and (to the
extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the rate of
interest (or Yield to Maturity, in the case of Original Issue
Discount Securities) specified in the Securities of such series; and
in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to
payment of such principal and interest, without preference or
priority of principal over interest, or of interest over principal,
or of any installment of interest over any other installment of
interest, or of any Security of such series over any other Security
of such series, ratably to the aggregate of such principal and
accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto.
SECTION 5.4 SUITS FOR ENFORCEMENT. In case an Event of
Default has occurred, has not been waived and is continuing, 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
this 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.
SECTION 5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF
PROCEEDINGS. In case the Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, then, and in every such case, the Issuer and the
Trustee shall be restored respectively to their former positions and
rights hereunder, and all rights, remedies and powers of the Issuer, the
Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 5.6 LIMITATIONS ON SUITS BY SECURITYHOLDERS. No
Holder of any Security of any series or of any Coupon appertaining thereto
shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture,
or for the appointment of a trustee, receiver, liquidator, custodian or
other similar official or for any other remedy hereunder, unless such
Holder previously shall have given to the Trustee written notice of
default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of not less than 25% in aggregate principal amount
of the Securities of each affected series then Outstanding (determined as
provided in Section 5.1 and voting as one class) shall have made written
request upon the Trustee to institute such action or proceedings 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 or proceeding and no direction
inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.9; it being understood and intended, and
being expressly covenanted by the taker and Holder of every Security or
Coupon with every other taker and Holder and the Trustee, that no one or
more Holders of Securities of any series or Coupons appertaining thereto
shall have any right in any manner whatever by virtue or by availing of
any provision of this Indenture to affect, disturb or prejudice the rights
of any other Holder of Securities or Coupons appertaining thereto, 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 the affected series and Coupons. 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.
SECTION 5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO
INSTITUTE CERTAIN SUITS. Notwithstanding any other provision in this
Indenture and any provision of any Security, the right of any Holder of
any Security or Coupon to receive payment of the principal of and interest
on such Security or Coupon on or after the respective due dates expressed
in such Security or Coupon, or to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired
or affected without the consent of such Holder.
SECTION 5.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION
NOT WAIVER OF DEFAULT. Except as provided in the last sentence of
Section 2.9 and subject to Section 5.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities
or Coupons is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons 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 Event
of Default or an acquiescence therein; and, subject to Section 5.6, every
power and remedy given by this Indenture or by law to the Trustee or to
the Holders of Securities or Coupons may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the
Holders of Securities or Coupons.
SECTION 5.9 CONTROL BY HOLDERS OF SECURITIES. The Holders of
a majority in aggregate principal amount of the Securities of each series
affected at the time Outstanding (determined as provided in Section 5.1
and voting as one class) 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 upon the Trustee with
respect to the Securities of such affected series by this Indenture;
provided that such direction shall not be otherwise than in accordance
with law and the provisions of this Indenture and provided further that
(subject to the provisions of Section 6.1) the Trustee shall have the
right to decline to follow any such direction if the Trustee, being
advised by counsel, shall determine that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith by its
board of directors, its executive committee or a trust committee of
directors or Responsible Officers of the Trustee shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability or that the actions or forbearances specified in or pursuant to
such direction would be unduly prejudicial to the interests of Holders of
the Securities of all affected series not joining in the giving of said
direction, it being understood that (subject to Section 6.1) the Trustee
shall have no duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee
in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by
Securityholders.
SECTION 5.10 WAIVER OF PAST DEFAULTS. Prior to the
declaration of acceleration of the maturity of any Securities as provided
in Section 5.1, the Holders of a majority in aggregate principal amount of
the Securities of all series at the time Outstanding with respect to which
a default or an Event of Default shall have occurred and be continuing
(determined as provided in Section 5.1 and voting as one class) may, on
behalf of the Holders of all such affected Securities, waive any past
default or Event of Default with respect to such series described in
Section 5.1 and its consequences, except a default or an Event of Default
in respect of a covenant or provision hereof or of any Security which
cannot be modified or amended without the consent of the Holder of each
Security affected. In the case of any such waiver, the Issuer, the
Trustee and the Holders of all such affected Securities 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.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured, and not to
have occurred for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY
WITHHOLD IN CERTAIN CIRCUMSTANCES. The Trustee shall, within 90 days after
the occurrence of a default with respect to the Securities of any series,
give notice of all defaults with respect to such series known to the
Trustee (i) if any Unregistered Securities of such series are then
Outstanding, to the Holders thereof by publication at least once in each
Authorized Newspaper with respect to such series and (ii) to all Holders
of Securities of such series in the manner and to the extent provided in
Section 4.4(c), unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term "default" for
the purpose of this Article being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become,
an Event of Default); provided that, except in the case of default in the
payment of the principal of or the interest on any of the Securities of
such series, or in the payment of any sinking fund installment or
analogous payment on such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors or trustees and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of
such series.
SECTION 5.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO
PAY COSTS. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the
case of any suit relating to or arising under clause (d) or (g) of Section
5.1 (if the suit relates to the Securities of more than one but less than
all series), 10% in aggregate principal amount of the Securities then
outstanding and affected thereby, or, in the case of any suit relating to
or arising under clause (d) or (g) (if the suit relates to all the
Securities then Outstanding), or clause (e) or (f) of Section 5.1, 10% in
aggregate principal amount of all Securities then Outstanding, or to any
suit instituted by any Securityholder for the enforcement of the payment
of the principal of or the interest (including interest evidenced by any
Coupon) on any Security on or after the due date expressed in such
Security or Coupon or any date fixed for redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING
DEFAULT; PRIOR TO DEFAULT. The Trustee, prior to the occurrence of an
Event of Default with respect to the Securities of a particular series and
after the curing or waiving of all Events of Default which may have
occurred with respect to such series, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture. In
case an Event of Default with respect to the Securities of a particular
series has occurred (which has not been cured or waived), the Trustee
shall exercise with respect to such series such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect
to the Securities of any series and after the curing or waiving of
all such Events of Default which may have occurred with respect to
such series:
(i) the duties and obligations of the Trustee with respect
to the Securities of such series shall be determined solely by
the express provisions of this Indenture, and the Trustee shall
not be liable 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 the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such statements, certificates
or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(b) 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; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
an appropriate direction of the Holders pursuant to Section 5.9
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.
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 power, if there shall be reasonable
grounds for believing that the repayment of such funds or adequate
indemnity against such liability is not reasonable assured to it.
SECTION 6.2 CERTAIN RIGHTS OF THE TRUSTEE. Subject to Section
6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, Coupon, 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 Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof certified
by the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any written advice
or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted to
be taken by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions
of this Indenture, unless such Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default with respect
to the Securities of any series and after the curing or waiving of
all such Events of Default, 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, appraisal, bond, debenture, note, Coupon,
security or other paper or document unless requested in writing so to
do by the Holders of not less than a majority in aggregate principal
amount of the Securities of all affected series then Outstanding;
provided 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 proceeding; the reasonable expenses of every such investigation
shall be paid by the Issuer or, if paid by the Trustee, shall be
repaid by the Issuer 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 not regularly in its employ, and the
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder.
SECTION 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION
OF SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained
herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representation as to the validity or sufficiency of this
Indenture or of the Securities or Coupons. The Trustee shall not be
accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS;
COLLECTIONS, ETC. The Trustee or any agent of the Issuer or the Trustee,
in its individual or any other capacity, may become the owner or pledgee
of Securities or Coupons with the same rights it would have if it were not
the Trustee or such agent and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Issuer and receive, collect, hold and retain
collections from the Issuer with the same rights it would have if it were
not the Trustee or such agent.
SECTION 6.5 MONEYS HELD BY TRUSTEE. Subject to the provisions
of Section 10.4, 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 mandatory provisions of law. Neither the Trustee
nor any agent of the Issuer or the Trustee shall be under any liability
for interest on any moneys received by it hereunder.
SECTION 6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND
ITS PRIOR CLAIM. The Issuer 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), and the Issuer
covenants and agrees to pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by or
on behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements
of its counsel and of all agents and other persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Issuer also covenants to indemnify the
Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part arising out
of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including the
costs and expenses of defending itself against or investigating any claim
or liability in the premises. The obligations of the Issuer 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 and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall be a
senior claim 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 or Coupons, and the
Securities are hereby subordinated to such senior claim.
SECTION 6.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE,
ETC. Subject to Sections 6.1 and 6.2, whenever in the administration of
the trusts 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 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 by it under the
provisions of this Indenture in reliance thereon.
SECTION 6.8 QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS.
The Trustee shall be disqualified only where such disqualification is
required by Section 310(b) of the Trust Indenture Act. Nothing shall
prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act.
SECTION 6.9 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE.
There shall at all times be a Trustee hereunder for each series of
Securities which shall be a corporation organized and doing business under
the laws of the United States of America or any State thereof or the
District of Columbia having a combined capital and surplus of at least
$50,000,000, and which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by Federal,
State 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. 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 6.10.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE.
(a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all
series of Securities by giving written notice of resignation to the
Issuer and (i) if any Unregistered Securities of a series affected
are then Outstanding, by giving notice of such resignation to the
Holders thereof by publication at least once in each Authorized
Newspaper with respect to such series, (ii) if any Unregistered
Securities of a series affected are then Outstanding, by mailing
notice of such resignation to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to
Section 4.4(c)(ii) at such addresses as were so furnished to the
Trustee and (iii) by mailing notice of such resignation to the
Holders of the then Outstanding Registered Securities of each series
affected at their addresses as they shall appear on the Security
Register. Upon receiving such notice of resignation, the Issuer
shall promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument, in duplicate,
executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy
to the successor trustee or trustees. If no successor trustee shall
have been so appointed with respect to any series and shall 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, or
any Holder who has been a bona fide Holder of a Security or
Securities of such series for at least six months may, subject to the
provisions of Section 5.12, on behalf of such Holder 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:
(i) the Trustee shall fail to comply with the provisions
of Section 6.8 with respect to any series of Securities after
written request therefor by the Issuer or by any Holder who has
been a bona fide Holder of a Security or Securities of such
series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.9 and shall fail to resign
after written request therefor by the Issuer or by any such
Holder; or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver or
liquidator 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; or
(iv) the Issuer shall elect to remove the Trustee, provided
that no Event of Default, or event which following notice or the
passage of time or both would constitute an Event of Default,
shall then exist with respect to the Securities or series
thereof as to which the Trustee shall be removed and such
removal does not adversely affect the interests of any Holder of
such Securities or series;
then, in any such case, the Issuer may remove the Trustee with
respect to the Securities of any or all series, as appropriate, and
appoint a successor trustee for 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 Trustee so removed and one
copy to the successor trustee or trustees, or, subject to the
provisions of Section 5.12, any Holder who has been a bona fide
Holder of a Security or Securities of such series for at least six
months may, on behalf of such Holder 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) Any resignation or removal of the Trustee with respect to
any series of Securities and any appointment of a successor trustee
with respect to such 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 6.11
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 6.10 shall execute,
acknowledge and deliver to the Issuer and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee with respect to all
applicable series of Securities shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested
with all rights, powers, trusts and duties with respect to such applicable
series of its predecessor hereunder, with like effect as if originally
named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to
Section 10.4, pay over to the successor trustee all moneys at the time
held by it hereunder for the benefit of such applicable series and shall
execute, acknowledge and deliver an instrument transferring to such
successor trustee all such rights, powers, trusts and duties. Upon
request of any such successor trustee, the Issuer shall execute and
acknowledge any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such
rights, powers and trusts. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all Property or funds held or
collected by such trustee for the benefit of such applicable series to
secure any amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but less than all) series, the Issuer, the
predecessor trustee and each successor trustee so appointed shall execute,
acknowledge and deliver an indenture supplemental hereto which shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of such predecessor
trustee with respect to the Securities of any series as to which such
predecessor trustee is not retiring shall continue to be vested in such
predecessor trustee, and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees as co-trustees of the same trust and that each
such trustee shall be trustee of a separate trust or trusts under this
Indenture.
No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section unless at the time of
such acceptance such successor trustee shall be qualified under the
provisions of Section 6.8 and eligible under the provisions of Section
6.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section, the Issuer shall give notice thereof (a) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof by publication of such notice at least once in each
Authorized Newspaper with respect to such series, (b) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders
thereof who have filed their names and addresses with the Trustee pursuant
to Section 4.4(c)(ii) by mailing such notice to such Holders at such
addresses as were so furnished to the Trustee (and the Trustee shall make
such information available to the Issuer for such purpose) and (c) to the
Holders of Registered Securities of each series affected, by mailing such
notice to such Holders at their addresses as they shall appear on the
Security Register. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section
6.10. If the Issuer fails to give such notice within 10 days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be given at the expense of the Issuer.
SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS OF TRUSTEE. 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, 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 that such corporation shall be qualified under
the provisions of Section 6.9, 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, at the time of such succession to the Trustee, any of
the Securities of any series shall have been authenticated but not
delivered, any such successor trustee may adopt the certificate of
authentication of any predecessor trustee and deliver the Securities so
authenticated; and, in case, at that time, any of the Securities of any
series shall not have been authenticated, any successor trustee may
authenticate such Securities either in the name of any predecessor
hereunder or in the name of such successor trustee; and in all such cases
such certificate of authentication shall have the full force which it is
anywhere in the Securities of such series or in this Indenture provided
that the certificate of authentication of the Trustee shall have; provided
that the right to adopt the certification of any predecessor trustee or to
authenticate Securities of any series in the name of any predecessor
trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
ISSUER. (a) Subject to the provisions of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Issuer within four 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 Coupons and the holders of other
indenture securities (as defined in such subsection (c)):
(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 affected after the beginning of such four months' period and
valid as against the Issuer and its other creditors, except any such
reduction resulting from the receipt or disposition of any Property
described in clause (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 Issuer 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 four 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 Issuer 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 Issuer) who is liable
thereon, (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
Issuer in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States 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 four 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 four 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 four months; or
(D) to receive payment on any claim referred to in clause (B)
or (C) of this subsection, against the release of any Property held
as security for such claim as provided in such clause (B) or (C), as
the case may be, to the extent of the fair value of such Property,
For the purposes of clauses (B), (C) and (D), Property
substituted after the beginning of such four 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 clauses 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 establish a special account,
the funds and Property held in such special account and the proceeds
thereof shall be apportioned among the Trustee, the Holders and the
holders of other indenture securities in such manner that the Trustee, the
Holders and the holders of other indenture securities realize, as a result
of payments from such special account and payments of dividends on claims
filed against the Issuer in bankruptcy or receivership or in proceedings
for reorganization pursuant to Title 11 of the United States 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 Issuer of the funds and Property in such
special account and before crediting to the respective claims of the
Trustee, the Holders and the holders of other indenture securities
dividends on claims filed against the Issuer in bankruptcy or receivership
or in proceedings for reorganization pursuant to Title 11 of the United
States 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 proceedings for
reorganization pursuant to Title 11 of the United States 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 proceeding for reorganization is
pending shall have jurisdiction (i) to apportion among the Trustee, the
Holders and the holders of other indenture securities, in accordance with
the provisions of this paragraph, the funds and Property held in such
special account and 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 Holders and the holders of
other indenture securities with respect to their respective claims, in
which event is 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 four-month period shall be subject to the provisions of this
subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such four-
month period, it shall be subject to the provisions of this subsection if
and only if the following conditions exist:
(i) the receipt of Property or reduction of claim would
have given rise to the obligation to account, if such Trustee
had continued as trustee, occurred after the beginning of such
four-month period; and
(ii) such receipt of Property or reduction of claim
occurred within four months after such resignation or removal.
(b) There shall be excluded from the operation of this Section
a creditor relationship arising from:
(1) ownership or acquisition of securities issued under
any indenture or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture for the purpose
of preserving any Property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such 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, 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)(3) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Issuer; 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)(4) 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 interest upon any of the
Securities or upon the other indenture securities when and as such
principal or interest becomes due and payable;
(2) the term "other indenture securities" shall mean
securities upon which the Issuer is an obligor (as defined in the
Trust Indenture Act of 1939) outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of subsection (a)
of this Section and (iii) 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 Issuer 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 Issuer arising from the making, drawing, negotiating or incurring
of the draft, bill of exchange, acceptance or obligation; and
(5) the term "Issuer" shall mean any obligor upon the
Securities.
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT. As long as
any Securities of a series remain Outstanding, the Trustee may, by an
instrument in writing, appoint with the approval of the Issuer an
authenticating agent (the "Authenticating Agent") which shall be
authorized to act on behalf of, but subject to the direction of, the
Trustee to authenticate Securities of such series, including Securities
issued upon exchange, registration of transfer, partial redemption or
pursuant to Section 2.9. Securities of such series 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. Whenever
reference is made in this Indenture to the authentication and delivery of
Securities of any series by the Trustee or to the Trustee's certificate of
authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating Agent for such
series and a certificate of authentication executed on behalf of the
Trustee by such Authenticating Agent. Such Authenticating Agent shall at
all times be a corporation organized and doing business under the laws of
the United States of America or of any State thereof or of the District of
Columbia authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $5,000,000 (determined
as provided in Section 6.9 with respect to the Trustee) and subject to
supervision or examination by Federal or State authority.
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which any Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of any
Authenticating Agent, shall be the successor to such Authenticating Agent
with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall cease
to be eligible hereunder shall, resign by giving written notice of
resignation to the Trustee and to the Issuer. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving written notice
thereof to such Authenticating Agent and the Issuer. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall upon receipt of an Issuer
order appoint a successor Authenticating Agent and shall provide notice of
such appointment to all Holders of Securities affected thereby in the
manner and to the extent provided in Section 6.11 with respect to the
appointment of a successor trustee. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all
rights, powers and duties of its predecessor hereunder, with like effect
as if originally named as an Authenticating Agent.
Sections 6.2, 6.3, 6,4, 6.6 (except for the last sentence
thereof) and 7.3 shall be applicable to any Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITY HOLDERS
SECTION 7.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any
request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by a
specified percentage in aggregate principal amount of the Holders of one
or more series may be evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of Holders
in person or by agent or proxy duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective
when such instrument or instruments are delivered to the Trustee.
SECTION 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING
OF SECURITIES. Subject to Sections 6.1 and 6.2, proof of the execution of
any instrument by a Holder or his agent or proxy shall be sufficient if
made in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. Subject to Sections 6.1 and 6.2, proof of the holding by any
Person of any of the Securities of any series shall be sufficient if made
in the following manner:
(a) The ownership of an Unregistered Security of any series, or
of any Coupon attached thereto at its issuance, and the identifying
number of such Security and the date of such ownership, may be proved
by the production of such Security or Coupon or by a certificate
executed by any trust company, bank, banker or recognized securities
dealer, wherever situated, if such certificate shall be deemed by the
Trustee to be satisfactory. Each such certificate shall be dated and
shall state that on the date thereof a Security of such series
bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized
securities dealer by the person named in such certificate. Any such
certificate may be issued in respect of one or more Unregistered
Securities of one or more series specified therein. The ownership by
the Person named in any such certificate of any Unregistered Security
specified therein shall be presumed to continue unless at the time of
any determination of such ownership and holding (1) another
certificate bearing a later date issued in respect of such Security
shall be produced, (2) such security shall be produced by some other
Person or (3) such Security shall have ceased to be Outstanding.
Subject to Sections 6.1 and 6.2, the fact and date of the execution
of any such instrument and the ownership, amount and numbers of any
Unregistered Securities may also be proven in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee
for any series or in any other manner which the Trustee may deem
sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security Register or by a
certificate of the Security Registrar.
SECTION 7.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
Person in whose name any Security of any series shall be registered upon
the Security Register for such series as the absolute owner of such
Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for
the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on such security and
for all other purposes; and none of the Issuer, the Trustee and any agent
of the Issuer or the Trustee shall be affected by any notice to the
contrary. The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the Holder of any Unregistered Security and the Holder
of any Coupon as the absolute owner of such Unregistered Security or
Coupon (whether or not such Unregistered Security or Coupon shall be
overdue) for the purpose of receiving payment thereof or on account
thereof and for all other purposes; and none of the Issuer, the Trustee
and any agent of the Issuer or the Trustee shall be affected by any notice
to the contrary. All such payments so made to any such Person, or upon
his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon
any such Security or Coupon.
SECTION 7.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING.
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of one or more series have concurred in
any direction, consent or waiver under this Indenture, Securities which
are owned by the Issuer or any other obligor on the Securities with
respect to which such determination is being made or by any Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on the
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purposes 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 which the Trustee knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith
may be regarded as outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Issuer or any other
obligor upon such Securities or any Person directly or indirectly
controlling or controlled by or under direct or indirect common control
with the Issuer or any other obligor on such Securities. In case of a
dispute as to such right, the advice of counsel shall be full protection
in respect of any decision made by the Trustee in accordance with such
advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officer's Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above described Persons; and, subject to Sections
6.1 and 6.2, the Trustee shall be entitled to accept such Officer's
Certificate as conclusive evidence of the facts therein set forth and of
the fact that all securities not listed therein are Outstanding for the
purposes of any such determination.
SECTION 7.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time
prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.1, of the taking of any action by the Holders of the requisite
percentage in aggregate principal amount of the Securities of one or more
series, as the case may be, specified in this Indenture in connection with
such action, any Holder of a Security the serial number of which is shown
by the evidence to be included among the serial numbers of the Securities
the Holders of which have consented to such action may, by filing written
notice at the Corporate Trust Office and upon proof of ownership as
provided in Section 7.2, revoke such action so far as concerns such
Security. Except as aforesaid, any such action taken by the Holder of any
Security of any series shall be conclusive and binding upon such Holder
and upon all future Holders and owners of such Security and of any
Securities of such series issued in exchange or substitution therefor or
on registration of transfer thereof, irrespective of whether or not any
notation in regard thereto is made upon any such Security. Any action
taken by the Holders of the requisite percentage in aggregate principal
amount of the Securities of one or more series, as the case may be,
specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all
the Securities of such series.
With respect to Registered Securities, the Issuer may, but shall
not be obligated to, fix a record date for the purpose of determining the
Securityholders entitled to give their consent or take any other action
described above. If a record date is fixed, then notwithstanding the
immediately preceding paragraph those Persons who were Holders of such
Registered Securities at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to give such consent
or to revoke any consent previously given or to take any such action with
respect to such Registered Securities, whether or not such Persons
continue to be Holders after such record date. No such consent shall be
valid or effective for more than 120 days after such record date.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Issuer, when authorized by a resolution of the Board
of Directors (which resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), 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 in force at the date of the execution
thereof) for one or more of the following purposes:
(a) subject to Section 3.6, to convey, transfer, assign,
mortgage or pledge to the Trustee as security for the Securities of
one or more series any Property or assets;
(b) to add guarantees with respect to the Securities of one or
more series;
(c) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Issuer pursuant to Article IX;
(d) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and
the Trustee shall consider to be for the protection of the Holders of
Securities of any series or Coupons appertaining thereto, and to make
the occurrence, or the occurrence and continuance, of a default in
complying with any such additional covenant, restriction, condition
or provision an Event of Default permitting the enforcement of all or
any of the several remedies provided in this Indenture as herein set
forth; 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 an Event of Default or
may limit the remedies available to the Trustee upon such an Event of
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 an Event of Default;
(e) 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 as the Issuer may deem necessary or desirable, provided
that no such action shall adversely affect the interests of the
Holders of the Securities of any series or the Coupons appertaining
thereto;
(f) to establish the form and terms of the Securities of any
series or of the Coupons appertaining to such Securities, as
permitted by Sections 2.1 and 2.3;
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, all
as provided in Section 6.11;
(h) to provide for uncertificated Securities in addition to or
in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes
of Section 163(f) of the Internal Revenue Code of 1986, as amended,
or in a manner such that the uncertificated Securities are described
in Section 163(f)(2)(B) of the Internal Revenue Code of 1986, as
amended; and
(i) to comply with any requirements of the Commission in
connection with qualifying this Indenture under the Trust Indenture
Act of 1939.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and
to accept the conveyance, transfer, assignment, mortgage or pledge of any
Property or assets thereunder, 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 without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions
of Section 8.2.
SECTION 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS. With the consent (evidenced as provided in Article VII)
of the Holders of not less than a majority in aggregate principal amount
of the Securities of all series at the time Outstanding affected by such
supplemental indenture (voting as one class), the Issuer, when authorized
by a resolution of the Board of Directors (which resolution may provide
general terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with or
pursuant to an Issuer order), 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 in force at the date of execution thereof) 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
each such series or of the Coupons appertaining to such Securities;
provided that no such supplemental indenture shall (a) extend the time of
payment of the principal, or any installment of the principal, of any
Security or reduce the principal amount thereof, or reduce the rate, alter
the method of computation of the rate, or extend the time of payment of
interest thereon, or reduce any amount payable on the redemption thereof,
or make the principal thereof or the interest thereon payable in any coin
or currency other than that provided in such Security and the Coupons, if
any, appertaining thereto or in accordance with the terms thereof, or
reduce the amount of the principal of an original Issue Discount Security
that would be due and payable upon an acceleration of the maturity thereof
pursuant to Section 5.1 or the amount thereof provable in bankruptcy,
pursuant to Section 5.2, or alter the provisions of Section 11.11 or
11.12, or impair or affect the right to institute suit for the payment
thereof when due or, if such Security shall so provide, any right of
repayment at the option of the Holder, in each case without the consent of
the Holder of each Security so affected, or (b) reduce the percentage in
principal amount of the Outstanding Securities of the affected series, the
consent of whose Holders is required for any such supplemental indenture
or for any waiver provided for in this Indenture, without the consent of
the Holders of each Security so affected.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture that has expressly been
included solely for the benefit of one or more series of Securities, or
which modifies the rights of the Holders of Securities with respect to
such covenant or provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series or of the
Coupons pertaining to such Securities.
Upon the request of the Issuer, accompanied by a Board
Resolution complying with the first paragraph of this Section and evidence
of the consent of the Holders of the Securities as aforesaid and such
other documents, if any, as may be required by Section 7.1, the Trustee
shall join with the Issuer 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 Holders 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 Issuer and the Trustee of
any supplemental indenture pursuant to the provision of this Section, the
Trustee shall give notice thereof (i) to the Holders of then Outstanding
Registered Securities of each series affected thereby, by mailing a notice
thereof by first-class mail to such Holders at their addresses as they
shall appear on the Security Register, (ii) if any unregistered Securities
of a series affected thereby are then Outstanding, to the Holders thereof
who have filed their names and addresses with the Trustee pursuant to
Section 4.4(c)(ii), by mailing a notice thereof by first-class mail to
such Holders at such addresses as were so furnished to the Trustee and
(iii) if any Unregistered Securities of a series affected thereby are then
Outstanding, to all Holders thereof, by publication of a notice thereof at
least once in each Authorized newspaper with respect to such series, and
in each case such notice shall set forth in general terms the substance of
such supplemental indenture. Any failure of the Issuer to give such
notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 8.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall 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 Issuer and the Holders of Securities of each 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 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 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant to this Article complies
with the applicable provisions of this Indenture.
SECTION 8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES. Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to the provisions of
this Article may bear a notation in form approved by the Trustee as to any
matter provided for by such supplemental indenture. If a supplemental
indenture changes the terms of a Security, the Trustee may require the
Holder of such Security to deliver it to the Trustee, and the Trustee may
place an appropriate notation on the Security regarding the changed terms
and return it to such Holder. Alternatively, if the Issuer or the Trustee
shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Issuer, to any modification
of this Indenture contained in any such supplemental indenture may be
prepared by the Issuer, authenticated by the Trustee and delivered in
exchange for the Securities of such series then Outstanding. Any failure
to make any such notation or to issue a new Security shall not, however,
in any way impair or affect the validity of any such supplemental
indenture or any such Security the terms of which are changed.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 COVENANT OF ISSUER NOT TO MERGE, CONSOLIDATE, SELL
OR CONVEY PROPERTY EXCEPT UNDER CERTAIN CONDITIONS. Nothing contained in
this Indenture or in any of the Securities shall prevent any consolidation
of the Issuer with, or merger of the Issuer into, any other Person or
Persons (whether or not affiliated with the Issuer), or successive
consolidations or mergers to which the Issuer or its successor or
successors shall be a party or parties, or shall prevent any sale, lease
or conveyance of the Property of the Issuer as an entirety or
substantially as an entirety; provided, that, and the Issuer hereby
covenants and agrees, upon any such consolidation, merger, sale, lease or
conveyance, the due and punctual payment of the principal of and interest
on all the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants, conditions and other
obligations of this Indenture and the Securities to be performed or
observed by the Issuer, shall be expressly assumed, by supplemental
indenture satisfactory in form to the Trustee, executed and delivered to
the Trustee by the person formed by such consolidation, or into which the
Issuer shall have been merged, or which shall have acquired such Property;
provided, further, that the Person formed by such consolidation or into
which the Issuer is merged or the Person which acquired by conveyance or
sale, or which leases, the properties and assets of the Issuer as an
entirety or substantially as an entirety shall be a Person organized and
existing under the laws of the United States, any state thereof or the
District of Columbia and such Person undertakes to pay to the Holders of
Securities any additional amounts as may be necessary in order that every
net payment of principal of and interest, if any, on the Securities, after
withholding for or on account of any present or future tax, assessment or
governmental charge imposed upon such Holder (except for a tax, assessment
or charge imposed solely as a result of a connection between the recipient
and the jurisdiction imposing such tax assessment or charge) by reason of
or as a result of such payment being made by an entity which is not a
Person existing under the laws of the United States or any state thereof
or the District of Columbia, will not be less than the amount provided for
in the Securities to be then due and payable; and provided, further, that
immediately after giving effect to such transaction (and treating any
Secured Debt or Sale and Leaseback Transaction which becomes an obligation
of the resulting, surviving or transferred Person as a result of such
transaction as having been incurred or entered into by such Person at the
time of such transaction), no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default, shall
have happened and be continuing.
SECTION 9.2 SECURITIES TO BE SECURED IN CERTAIN EVENTS. If,
upon any such consolidation or merger of the Issuer or upon any such sale,
lease or conveyance of the Property of the Issuer as an entirety or
substantially as an entirety to any other Person, any Property owned by
the Issuer immediately prior thereto would thereupon become subject to any
Lien (unless the Secured Debt in respect of such Lien could have been
incurred by the Issuer without its being required by the provisions of
Section 3.6 to secure the Securities equally and ratably with (or prior
to) such Secured Debt), the Issuer, prior to any such consolidation,
merger, sale, lease or conveyance, will by indenture supplemental hereto
secure the Securities (together with, if the Issuer shall so determine,
any other Debt incurred, assumed or guaranteed by the Issuer ranking
equally with, or prior to, the Securities, whether then existing or
thereafter created) by a direct Lien on such Property, prior to all Liens
other than any theretofore existing thereon.
SECTION 9.3 SUCCESSOR PERSON SUBSTITUTED FOR ISSUER. In case
of any consolidation, merger, sale, lease or conveyance referred to in
Section 9.1, and following such assumption by the successor Person, such
successor Person shall succeed to and be substituted for the Issuer, with
the same effect as if it had been named herein.
Such successor Person may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such
succession, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor Person, instead of the
Issuer, 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 Issuer to the Trustee for authentication, and any
Securities which such successor Person thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All of 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.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance)
may be made in the Securities thereafter to be issued as may be
appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease), the Issuer or any successor Person which
shall theretofore have become such in the manner described in this Article
shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be liquidated and dissolved.
SECTION 9.4 OFFICERS' CERTIFICATE AND OPINION OF COUNSEL
DELIVERED TO TRUSTEE. The Trustee, subject to the provisions of Sections
6.1 and 6.2, may receive an Officers' Certificate and an Opinion of
Counsel each stating that any such consolidation, merger, sale, lease or
conveyance, that any such assumption, that any such supplemental indenture
and that any such liquidation or dissolution, complies with the applicable
provisions of this Indenture.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 SATISFACTION AND DISCHARGE OF INDENTURE. (A) If
at any time (a) the Issuer shall have paid or caused to be paid the
principal of and interest on all the securities of each series theretofore
authenticated, including all Coupons appertaining thereto (other than
Securities and Coupons appertaining thereto which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 2.9), in accordance with the terms of this Indenture and such
Securities or (b) as to Securities and Coupons not so paid, the Issuer
shall have delivered to the Trustee for cancellation all Securities of
each series theretofore authenticated and all Coupons appertaining thereto
(other than any Securities and Coupons appertaining thereto which shall
have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.9) or (c) as to Securities and Coupons not
so paid or delivered for cancellation, in the case of any series of
Securities as to which the exact amount (including the currency of
payment) of principal of and interest due can be determined at the time of
making the deposit referred to in clause (ii) below, (i) all the
Securities of such series and all Coupons appertaining thereto shall have
become due and payable, and (ii) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the
entire amount in cash (other than moneys repaid by the Trustee or any
paying agent to the Issuer in accordance with Section 10.4) to pay the
principal and interest on all Securities of such series and Coupons
appertaining thereto at maturity; and if, in the case of (a), (b) or (c),
the Issuer shall also pay or cause to be paid all other sums payable
hereunder by the Issuer, then this Indenture shall, subject to Section
10.6, cease to be of further effect (except as to (i) rights of
registration of transfer and exchange of Securities and of Coupons
appertaining thereto and the Issuer's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (iii) the rights of Holders of Securities and
Coupons appertaining thereto to receive payments of principal thereof and
interest thereon, upon the original stated due dates therefor (but not
upon acceleration), and remaining rights of such Holders to receive
mandatory sinking fund or analogous payments, if any, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v) the
rights of Holders of Securities and Coupons appertaining thereto as
beneficiaries hereof with respect to the Property so deposited with the
Trustee and payable to all or any of them, (vi) the obligations of the
Issuer under Sections 3.2, 3.3, 3.4, 4.1 and 9.3 and the first and second
provisos of Section 9.1 and (vii) this Article X pertinent to such
continuing obligations); and the Trustee, on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with, and
at the cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction and discharge of this Indenture; provided
that the rights of Holders of the Securities and Coupons to receive
amounts in respect of principal of and interest on the Securities and
Coupons held by them shall not be delayed longer than required by then
applicable mandatory rules or policies of any national securities exchange
upon which the Securities are listed. The Issuer agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities.
(B) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in the Board Resolution,
Officers' Certificate or supplemental indenture relating thereto provided
pursuant to Section 2.1. In addition to discharge of this Indenture
pursuant to the next preceding paragraph (A), in the case of any series of
Securities as to which the exact amount (including the currency of
payment) of principal of and interest due can be determined at the time of
making the deposit referred to in subparagraph (a) below, the Issuer shall
be deemed to have paid and discharged the entire indebtedness on all the
Securities of such series and the Coupons appertaining thereto on the 91st
day after the date of such deposit, and the provisions of this Indenture
with respect to the Securities of such series and Coupons appertaining
thereto shall, subject to Section 10.6, no longer be in effect (except as
to (i) rights of registration of transfer and exchange of Securities of
such series and of Coupons appertaining thereto and the Issuer's right of
optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) the rights of
Holders of Securities of such series and Coupons appertaining thereto to
receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration), and
remaining rights of such Holders to receive mandatory sinking fund or
analogous payments, if any, solely from the trust fund referred to in
subparagraph (a) below, (iv) the rights, obligations, duties and
immunities of the Trustee hereunder, (v) the rights of Holders of
Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the Property so deposited with the
Trustee and payable to all or any of them, (vi) the obligations of the
Issuer under Sections 3.2, 3.3, 3.4, 4.1 and 9.3 and the first and second
provisos of Section 9.1 and (vii) this Article X pertinent to such
continuing obligations); and the Trustee, at the cost and expense of the
Issuer, shall, at the Issuer's request, execute proper instruments
acknowledging the same, if:
(a) the Issuer shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee as a trust fund specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series and Coupons appertaining
thereto (i) cash in an amount, or (ii) Government Obligations,
maturing as to principal and interest at such times and in such
amounts as will ensure the availability of cash, or (iii) a
combination thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A)
the principal (and premium or Make-Whole Amount, if any) and interest
on all Securities of such series and Coupons appertaining thereto on
each date that such principal or interest is due and payable and (B)
any mandatory sinking fund or analogous payments on the dates on
which such payments are due and payable in accordance with the terms
of this Indenture and the Securities of such series;
(b) no Event of Default or event which, with notice or lapse of
time or both, would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on
the date of such deposit or, insofar as clauses (e) and (f) of
Section 5.1 are concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of
such period);
(c) such deposit, defeasance and discharge shall not result in
a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Issuer is
a party or by which it is bound;
(d) such deposit, defeasance and discharge shall not cause any
Securities of such series then listed on any national securities
exchange registered under the Exchange Act to be delisted;
(e) the Issuer shall have delivered to the Trustee an Opinion
of Counsel (which counsel shall be counsel selected by the Issuer
with national recognition in matters of federal income tax law) to
the effect that either (A) there has been a change in the applicable
Federal income tax law or (B) the Issuer has received from, or there
has been published by, the Internal Revenue Service a ruling to the
effect that, and in any such case referred to in clause (A) or (B)
such Opinion of Counsel shall confirm that based thereon, the Holders
of the Securities of such series then Outstanding and Coupons
appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred;
and
(f) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this paragraph have been complied with.
(C) The Issuer shall be released from its obligations under Sections
3.5, 3.6 and 3.7 and Article IX (other than the first and second provisos
of Section 9.1 with respect to the Securities of a particular series and
any Coupons appertaining thereto Outstanding on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant
defeasance")). Covenant defeasance means that, with respect to the
Outstanding Securities of such series, the Issuer may omit to comply with
and shall have no liability in respect of any term, condition or
limitation set forth in Sections 3.5, 3.6, 3.7, 3.8, 3.9, 3.10 and 3.11
and Article IX, whether directly or indirectly by reason of any reference
in such Section or Article to any other provision herein or by reason of
any reference to any such Section or Article in any other document, and
such omission to comply shall not constitute an Event of Default under
Section 5.1 of this Indenture and other Outstanding Securities of such
series, but the remainder of this Indenture and other Outstanding
Securities and Coupons shall be unaffected thereby. The following shall
be the conditions to application of this paragraph (C):
(a) the Issuer shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee as a trust fund specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series and Coupons appertaining
thereto, (i) cash in an amount, or (ii) Government Obligations,
maturing as to principal and interest at such times and in such
amounts as will ensure the availability of cash, or (iii) a
combination thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A)
the principal (and premium or Make-Whole Amount, if any) and interest
on all Securities of such series and Coupons appertaining thereto on
each date that such principal or interest is due and payable and (B)
any mandatory sinking fund or analogous payments on the dates on
which such payments are due and payable in accordance with the terms
of this Indenture and the Securities of such series;
(b) no Event of Default or event which, with notice or lapse of
time or both, would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on
the date of such deposit or, insofar as clauses (e) and (f) of
Section 5.1 are concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of
such period);
(c) such deposit and covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Issuer is a party
or by which it is bound;
(d) such deposit and covenant defeasance shall not cause any
Securities of such series then listed on any national securities
exchange registered under the Exchange Act to be delisted;
(e) the Issuer shall have delivered to the Trustee an Opinion
of Counsel (which counsel shall be counsel selected by the Issuer
with national recognition in matters of federal income tax law) to
the effect that the Holders of the Securities of such series then
Outstanding and Coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit and covenant
defeasance had not occurred; and
(f) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to such covenant
defeasance have been complied with.
SECTION 10.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR
PAYMENT OF SECURITIES. Subject to Section 10.4, all moneys deposited with
the Trustee pursuant to Section 10.1 in respect of the Outstanding
Securities of a particular series and the Coupons appertaining thereto
shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Issuer acting as its own paying
agent), to the Holders of such Securities and Coupons of all sums due and
to become due thereon for principal and interest; but such money need not
be segregated from other funds except to the extent required by law.
SECTION 10.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture with
respect to the Securities of any series, all moneys then held by any
paying agent under the provisions of this Indenture with respect to such
series of Securities shall, upon demand of the Issuer, be paid to the
Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 10.4 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT
UNCLAIMED FOR TWO YEARS. Any moneys deposited with or paid to the Trustee
or any paying agent for the payment of the principal of or interest on any
Security of any series or Coupons appertaining thereto and not applied but
remaining unclaimed for two years after the date upon which such principal
or interest shall have become due and payable, shall, upon the written
request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed Property law,
be repaid to the Issuer by the Trustee or such paying agent, and the
Holder of the Securities of such series and of any Coupons appertaining
thereto shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed Property laws, thereafter
look only to the Issuer for any payment which such Holder may be entitled
to collect, and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease; provided, however, that the
Trustee or such paying agent, before being required to make any such
repayment with respect to moneys deposited with it for any payment (a) in
respect of Registered Securities of any series, shall at the expense of
the Issuer, mail by first-class mail to Holders of such Securities at
their addresses as they shall appear on the Security Register for the
Securities of such series, (b) in respect of Unregistered Securities of
any series, shall at the expense of the Issuer, mail by first-class mail
to Holders of such Securities who have filed their names and addresses
with the Trustee pursuant to Section 4.4(c)(ii) at such addresses as were
so furnished to the Trustee and (c) in respect of Unregistered Securities
of any series, shall at the expense of the Issuer cause to be published
once, in each Authorized Newspaper with respect to such series, notice
that such moneys remain and that, after a date specified therein, which
shall not be less than 30 days from the date of such mailing or
publication, any unclaimed balance of such moneys then remaining will be
repaid to the Issuer.
SECTION 10.5 INDEMNITY FOR GOVERNMENT OBLIGATIONS. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the Government Obligations deposited
pursuant to Section 10.1 or the principal or interest received in respect
of such Government Obligations, other than any such tax, fee or other
charge which by law is for the account of the Holders of the Securities
and Coupons for whose benefit such Government Obligations are held.
SECTION 10.6 REINSTATEMENT. If the Trustee or paying agent is
unable to apply any money or Government Obligation in accordance with this
Article X by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuer's obligations under
this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to this Article X until such time
as the Trustee or paying agent is permitted to apply all such money or
Government Obligations in accordance with this Article X; provided,
however, that, if the Issuer has made any payment of interest on or
principal of any Securities because of the reinstatement of its
obligations, the Issuer shall be entitled, at its election, (a) to receive
from the Trustee or paying agent, as applicable, that portion of such
money or Government Obligations equal to the amount of such payment or (b)
to be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or Government Obligations held by the
Trustee or paying agent.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS OF ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under
or upon any obligation, covenant or agreement contained in this Indenture,
or in any Security or Coupon, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such, or against any
past, present or future stockholder, officer or director, as such, of the
Issuer or of any successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and
released by the acceptance of the Securities and the Coupons appertaining
thereto by the Holders thereof and as part of the consideration for the
issue of the Securities and the Coupons appertaining thereto.
SECTION 11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF
PARTIES AND HOLDERS OF SECURITIES AND COUPONS. Nothing in this Indenture,
in the Securities or Coupons appertaining thereto, expressed or implied,
shall give or be construed to give to any person, firm or corporation,
other than the parties hereto and their successors and the Holders of the
Securities or Coupons, if any, any legal or equitable right, remedy or
claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of
the parties hereto and their successors and of the Holders of the
Securities or Coupons, if any.
SECTION 11.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY
INDENTURE. All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Issuer shall bind its
successors and assigns, whether so expressed or not.
SECTION 11.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND
HOLDERS OF SECURITIES AND COUPONS. 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 any Holder of Securities of any series or Coupons
appertaining thereto to or upon the Issuer may be given or served in
person or by being deposited postage prepaid in the United States mail,
first-class mail (except as otherwise specifically provided herein),
addressed (until another address of the Issuer is filed by the Issuer with
the Trustee) to Aliant Communications Inc., 1440 M Street, Lincoln,
Nebraska 68508, Attention: Chief Financial Officer. Any notice,
direction, request or demand by the Issuer or any Holder of Securities of
any series or Coupons appertaining thereto to or upon the Trustee may be
given or served in person or by being deposited postage prepaid in the
United States mail, first-class mail (except as otherwise specifically
provided herein), addressed (until another address of the Trustee is filed
by the Trustee with the Issuer) to the Corporate Trust Office. Any notice
required or permitted to be given or served by the Issuer or by the
Trustee to or upon (i) any Holders of Registered Securities of any series
or any Holders of Unregistered Securities who have filed their names and
addresses with the Trustee pursuant to Section 4.4(c)(ii), may be given or
served by being deposited in the United States mail, first-class mail
(except as otherwise specifically provided herein), addressed at their
addresses as they shall appear on the Security Register or at the
addresses so filed, respectively, and (ii) any Holders of other
Unregistered Securities by publication at least once in each Authorized
Newspaper with respect to such series.
In any case where notice to the Holders of Securities is given
by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon
such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the
Issuer when such notice is required to be given pursuant to any provision
of this Indenture, then any manner of giving notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of
such notice.
SECTION 11.5 OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of
this Indenture, the Issuer 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 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.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that
the person making such certificate or opinion has read such covenant or
condition, (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based, (c) a statement that,
in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with and
(d) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such
officer knows that the certificate or opinion of or representations with
respect to the matters upon which his certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of reasonable
care should know that the same are erroneous. Any certificate, statement
or opinion of counsel may be based, insofar as it relates to factual
matters, information with respect to which is in the possession of the
Issuer, upon the certificate, statement or opinion of or representations
by an officer or officers of the Issuer, unless such counsel knows that
the certificate, statement or opinion or representations with respect to
the matters upon which his certificate, statement or opinion may be based
as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Issuer, unless such
officer or counsel, as the case may be, knows that the certificate or
opinion or representations with respect to the accounting matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same
are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a
statement that such firm is independent.
SECTION 11.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS.
If the date of maturity of interest on or principal of the Securities of
any series or any Coupons appertaining thereto or the date fixed for
redemption or repayment of any such Security or Coupon shall not be a
Business Day, then payment of interest or principal need not be made on
such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the date of maturity or the date fixed
for redemption or repayment, and no interest shall accrue for the period
after such date.
SECTION 11.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT OF 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included herein by the Trust Indenture Act of 1939 (as it
may be amended from time to time, such required provision shall control.
SECTION 11.8 NEW YORK LAW TO GOVERN. This Indenture and each
Security and Coupon shall be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance
with the laws of such State, except as may otherwise be required by
mandatory provisions of law.
SECTION 11.9 COUNTERPARTS. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 EFFECT OF HEADINGS. The Article and Section
headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.11 SECURITIES IN A FOREIGN CURRENCY OR IN ECUs.
Unless otherwise specified in or pursuant to a Board Resolution, a
supplemental indenture or an Officers' Certificate delivered pursuant to
Section 2.3 with respect to a particular series of securities, whenever
for purposes of this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of securities of one or
more series at the time Outstanding and, at such time, there are
Outstanding Securities of any series which are denominated in a Foreign
Currency (including ECUs), then the principal amount of Securities of such
series which shall be deemed to be Outstanding for the purpose of taking
such action shall be the amount of Dollars that could be obtained for such
amount at the Market Exchange Rate. For purposes of this Section, "Market
Exchange Rate" shall mean the noon Dollar buying rate in New York City for
cable transfers of such Foreign Currency as published by the Federal
Reserve Bank of New York; provided, however, that in the case of ECUs,
Market Exchange Rate shall mean the rate of exchange determined by the
commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities (such
publication or any successor publication, the "Journal"). If such Market
Exchange Rate is not available for any reason with respect to such Foreign
Currency or ECUs, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank
of New York or, in the case of ECUs, the rate of exchange as published in
the Journal, as of the most recent available date, or quotations or, in
the case of ECUs, rates of exchange from one or more major banks in the
City of New York or in the country of issue of the Foreign Currency in
question, which for purposes of the ECU shall be Brussels, Belgium, or
such other quotations or, in the case of ECU, rates of Brussels, Belgium,
or such other quotations or, in the case of ECU, rates of exchange as the
Trustee shall deem appropriate. The provisions of this paragraph shall
also apply in connection with any other action taken by the Holders of
Securities pursuant to the terms of this Indenture, including without
limitation Section 5.1.
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive to the extent permitted by law
for all purposes and irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 JUDGMENT CURRENCY. The Issuer agrees, to the
fullest extent that it may effectively do so under applicable law, that
(a) if for the purpose of obtaining judgment in any court it is necessary
to convert the sum due in respect of the principal of or interest on the
Securities of any series (the "Required Currency") into a currency in
which a judgment will be rendered (the "Judgment Currency"), the rate of
exchange used shall be the rate at which, in accordance with normal
banking procedures, the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York
Banking Day, in which case, to the extent permitted by applicable law, the
rate of exchange used shall be the rate at which, in accordance with
normal banking procedures, the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the New York
Banking Day next preceding the day on which final unappealable judgment is
entered and (b) its obligations under this Indenture and the Securities of
such series to make payments in the Required currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with clause (a)), in any
currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the effective receipt by the payee of
the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such effective receipt shall fall
short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any
other sums due under this Indenture. For purposes of the foregoing, "New
York Banking Day" means any day except a Saturday, Sunday or a legal
holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order
to close.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the Securities of any series that are
redeemable before their maturity or to any sinking fund for the retirement
of Securities except as otherwise specified as contemplated by Section 2.3
for Securities of any series.
SECTION 12.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS.
Notice of redemption to the Holders of Registered Securities of any series
to be redeemed as a whole or in part shall be given by mailing notice of
such redemption by first class mail, postage prepaid, at least 30 days and
not more than 60 days prior to the date fixed for redemption, to such
Holders at their last addresses as they shall appear upon the registry
books for such Securities. Notice of redemption to the Holders of
Unregistered Securities of any series to be redeemed as a whole or in
part, who have filed their names and addresses with the Trustee pursuant
to Section 4.4(c)(ii), shall be given by mailing notice of such redemption
by first class mail, postage prepaid, at least 30 days and not more than
60 days prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any
such notice given by the Issuer, the Trustee shall make such information
available to the Issuer for such purpose). Notice of redemption to all
other Holders of Unregistered Securities of any series shall be published
in each Authorized Newspaper with respect to such series once in each of
three successive calendar weeks, the first publication to be not less than
30 days nor more than 60 days prior to the date fixed for redemption. Any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the
notice. Failure to give notice by mail, or any defect in the notice to
the Holder of any Security of any series designated for redemption as a
whole or in part, shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount (and premium or Make-Whole Amount, if any) of each
Security of such series held by such Holder to be redeemed, the date fixed
for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities
and, in the case of Securities with Coupons attached thereto, of all
Coupons appertaining thereto maturing after the date fixed for redemption,
that such redemption is pursuant to the mandatory or optional sinking or
other analogous fund, or both, if such be the case, the interest accrued
to the date fixed for redemption will be paid as specified in such notice,
that on and after said date interest thereon or on the portions thereof to
be redeemed will cease to accrue (unless the Issuer defaults in making
such redemption payment or the paying agent is prohibited from making such
payment pursuant to the terms of this Indenture) and that no
representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Securities. In
case any Security is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount (and premium or Make-Whole
Amount, if any) thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series in authorized denominations for an
aggregate principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at
the Issuer's request, by the Trustee in the name and at the expense of the
Issuer, in which case the Issuer will provide the Trustee with the
information required to be included in such notice by the preceding
paragraph.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with
the Trustee or with one or more paying agents (or, if the Issuer is acting
as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.4) an amount of money sufficient to redeem on the
redemption date all the Securities of any series so called for redemption
(other than Securities or portions of Securities called for redemption
which have been delivered by the Issuer to the Trustee for cancellation as
provided in Section 12.5) at the applicable redemption price, together
with accrued interest to the date fixed for redemption. The Issuer will
deliver to the Trustee at least 70 days prior to the date fixed for
redemption an Officers' Certificate stating the aggregate principal amount
(and premium or Make-Whole Amount, if any) of Securities of each series
and, if applicable, the Tranche (as hereinafter defined) to be redeemed.
In case of a redemption at the option of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver
to the Trustee, prior to the giving of any notice of redemption to Holders
pursuant to this Section, an Officers' Certificate stating that such
restriction has been complied with. If less than all the Securities of
like tenor and terms of any series (a "Tranche") are to be redeemed, the
Trustee shall select the particular Securities of such Tranche to be
redeemed pro rata or by lot or by a method that complies with the
applicable legal and securities exchange requirements, if any, and that
the Trustee considers fair and appropriate and in accordance with the
methods generally used at the time of selection by fiduciaries in similar
circumstances. Securities may be redeemed in part in multiples equal to
the minimum authorized denomination for securities of such series or any
multiple thereof. If less than all Securities of unlike tenor and terms
of a series are to be redeemed, the particular Tranche of Securities to be
redeemed shall be selected by the Issuer. The Trustee shall promptly
notify the issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. For all purposes
of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities of any series shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount (and premium or Make-Whole Amount, if any)
of such Security which has been or is to be redeemed.
SECTION 12.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If
notice of redemption has been given as provided in Section 12.2, the
Securities or portions of Securities 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 on and after said date (unless the Issuer shall
default in the payment of such Securities at the applicable redemption
price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease
to accrue, the unmatured Coupons, if any, appertaining thereto shall be
void and, except as provided in Sections 6.5 and 10.4, such Securities
shall cease from and after the date fixed for redemption to be entitled to
any benefit or security under this Indenture, and the Holders thereof
shall have no right in respect of such Securities except the right to
receive the applicable redemption price thereof and unpaid interest to the
date fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice, together with
all Coupons, if any, appertaining thereto maturing after the date fixed
for redemption, such Securities or the specified portions thereof shall be
paid and redeemed by the Issuer at the applicable redemption price,
together with interest accrued thereon to the date fixed for redemption;
provided that payment of interest becoming due on or prior to the date
fixed for redemption shall be payable, in the case of Securities with
Coupons attached thereto, to the Holders of the Coupons for such interest
upon surrender thereof or, in the case of Registered Securities, to the
Holders of such Registered Securities registered as such on the relevant
Record Date, subject to the terms and provisions of Sections 2.3 and 2.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate
of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing
after the date fixed for redemption, the surrender of such missing Coupon
or Coupons may be waived by the Issuer and the Trustee, if there be
furnished to each of them such security or indemnity as they may require
to save each of them harmless.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or
on the order of the Holder thereof, at the expense of the Issuer, a new
Security or Securities of such series, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so
presented.
SECTION 12.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY
FOR SELECTION FOR REDEMPTION. Securities shall be excluded from
eligibility for selection for redemption if they are identified by
registration and certificate number in an Officers' Certificate delivered
to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and
not pledged or hypothecated by, either (a) the Issuer or (b) an entity
specifically identified in such Officers' Certificate as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
SECTION 12.5 MANDATORY AND OPTIONAL SINKING FUNDS. The
minimum amount of any sinking fund payment provided for by the terms of
the 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 the Securities of any series is herein referred to as
an "optional sinking fund payment." The date on which a sinking fund
payment is to be made is herein referred to as the "sinking fund payment
date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may
at its option (a) deliver to the Trustee Securities of such series
theretofore purchased or otherwise acquired (except upon redemption
pursuant to the mandatory sinking fund) by the Issuer or receive credit
for Securities of such series (not previously so credited) theretofore
purchased or otherwise acquired (except as aforesaid) by the Issuer and
delivered to the Trustee for cancellation pursuant to Section 2.10, (b)
receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the
Issuer through any optional redemption provision shall be received or
credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee an
Officers' Certificate (which need not contain the statements required by
Section 11.5) (a) specifying the portion of the mandatory sinking fund
payment due on such date to be satisfied by payment of cash and the
portion to be satisfied by credit of Securities of such series and the
basis for such credit, (b) stating the none of the Securities of such
series to be so credited has theretofore been so credited, (c) stating
that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured)
and are continuing and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment on such date
with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the issuer intends to pay on or before
the next succeeding sinking fund payment date. Any Securities of such
series to be so credited and required to be delivered to the Trustee in
order for the Issuer to be entitled to credit therefor as aforesaid which
have not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such Officers'
Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers' Certificate shall be irrevocable, and upon its
receipt by the Trustee the Issuer shall become unconditionally obligated
to make all the cash payments or other deliveries therein referred to, if
any, on or before the next succeeding sinking fund payment date. Failure
of the Issuer, on or before any such 60th day, to deliver such Officers'
Certificate and Securities (subject to the parenthetical in the
immediately preceding sentence) specified in this paragraph, if any, shall
not constitute a default but shall constitute, on and as of such 60th day,
the irrevocable election of the Issuer that (i) the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment
date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof (i) the Issuer will
make no optional sinking fund payment with respect to such series on such
date as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment
date plus any unused balance of any preceding sinking fund payments made
in cash shall exceed $50,000 (or the equivalent thereof in any Foreign
Currency or ECU), or any lesser sum in Dollars (or the equivalent thereof
in any Foreign Currency or ECU), if the Issuer shall so request with
respect to the Securities of any particular series, such cash shall be
applied on the next succeeding sinking fund payment date to the redemption
of Securities of such series at the applicable sinking fund redemption
price, together with accrued interest to the date fixed for redemption.
If such amount shall be $50,000 (or the equivalent thereof in any Foreign
Currency or ECU) or less and the Issuer makes no such request, then such
amount shall be carried over until a sum in excess of $50,000 (or the
equivalent thereof in any Foreign currency or ECU) is available. The
Trustee shall select, in the manner provided in Section 12.2, for
redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and
shall (if requested in writing by the Issuer) inform the issuer of the
serial numbers of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for redemption
under this Section if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 40
days prior to the sinking fund payment date as being owned of record and
beneficially by, and not pledged or hypothecated by either (a) the Issuer
or (b) an entity specifically identified in such Officers' Certificate as
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer. The Trustee, in the name and at
the expense of the Issuer (or the Issuer, if it shall so request the
Trustee in writing), shall cause notice of redemption of the Securities of
such series to be given in substantially the manner provided in Section
12.2 (and with the effect provided in Section 12.3) for the redemption of
Securities of such series in part at the option of the Issuer. The amount
of any sinking fund payments not so applied or allocated to the redemption
of Securities of such series shall be added to the next cash sinking fund
payment for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of a
particular series (or earlier, if such maturity is accelerated), which are
not held for the payment or redemption of particular Securities of such
series, shall be applied, together with other moneys, if necessary,
sufficient for the purpose, to the payment of the principal of and
interest on the Securities of such series at maturity.
Unless otherwise provided for, on or before each sinking fund
payment date, the Issuer shall pay to the Trustee in cash or shall
otherwise provide for the payment of all interest accrued to the date
fixed for redemption on Securities to be redeemed on such sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed Securities
of any series with sinking fund moneys or give any notice of redemption of
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in the payment of interest on the
Securities of such series or of any Event of Default with respect to such
series except that, if notice of redemption of any Securities of such
series shall theretofore have been given, the Trustee shall redeem or
cause to be redeemed such Securities, provided that the Trustee or one or
more paying agents shall have received from the Issuer a sum sufficient
for such redemption. Except as aforesaid, any moneys in the sinking fund
for such series at the time when any such default or Event of Default
shall occur, and any moneys thereafter paid into the sinking fund, shall,
during the continuance of such default or Event of Default, be deemed to
have been collected under Article V and held for the payment of all
Securities of such series. In case such Event of Default shall have been
waived as provided in Section 5.10 or the default cured on or before the
60th day preceding any sinking fund payment date, such moneys shall
thereafter be applied on such sinking fund payment date in accordance with
this Section to the redemption of Securities of such series.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and delivered as of zFebruary 23, 1998.
ALIANT COMMUNICATIONS INC.
By: /s/ FRANK H. HILSABECK
Name: Frank H. Hilsabeck
Title: President and Chief Executive
Officer
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
By:/s/ GRETCHEN L. MIDDENTS
Gretchen L. Middents
Assistant Vice President
Attest:
By:/s/ WILLIAM W. MACMILLAN
William W. MacMillan
Assistant Secretary
AMENDED AND RESTATED BY-LAWS
OF
ALIANT COMMUNICATIONS INC.
ARTICLE I
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders
shall be held on the fourth (4th) Wednesday of April, except that the
Board of Directors may set an earlier date or later date for the annual
meeting or postpone the annual meeting at any time prior to the originally
scheduled or postponed annual meeting date, subject to applicable law,
with any such earlier, later or postponed date disclosed promptly by means
of a public announcement. For purposes of this Section 1 of Article I,
"public announcement" shall mean the date on which disclosure of the date
of the meeting of shareholders is first made in a press release reported
by the Dow Jones News Service, Associated Press or comparable national
news service, or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The
annual meeting shall be held at such time as shall be determined by the
Board of Directors and stated in the notice thereof, for the purpose of
electing successors to the class of directors whose term expires at that
annual meeting and any additional director of any class nominated to fill
a vacancy resulting from an increase in such class determined by the Board
of Directors and for the transaction of such other business as may come
before the meeting. Annual meetings shall be held at the principal office
of the Corporation or at such other place, either within or without the
State of Nebraska, as shall be determined by the Board of Directors and
stated in the notice thereof.
Section 2. Special Meetings.
(a) A special meeting of the shareholders (a "Special Meeting") may
be called only by the President and CEO or the Board of Directors or shall
be called by the President and CEO upon the demand, in accordance with
this Section 2, of the holders of record of shares representing not less
than ten percent (10%) of all the votes entitled to be cast on any issue
proposed to be considered at the Special Meeting.
(b) In order that the Corporation may determine the shareholders
entitled to demand a Special Meeting, the Board of Directors may fix a
record date to determine the shareholders entitled to make such a demand
(the "Demand Record Date"). The Demand Record Date shall not precede the
date upon which the resolution fixing the Demand Record Date is adopted by
the Board of Directors and shall not be more than ten (10) days after the
date upon which the resolution fixing the Demand Record Date is adopted by
the Board of Directors. Any shareholder of record seeking to have share-
holders demand a Special Meeting shall, by sending written notice to the
Secretary of the Corporation by hand or by certified or registered mail,
return receipt requested, request the Board of Directors to fix a Demand
Record Date. The Board of Directors shall promptly, but in all events
within ten (10) days after the date on which a valid request to fix a
Demand Record Date is received, adopt a resolution fixing the Demand
Record Date and shall make a public announcement of such Demand Record
Date. If no Demand Record Date has been fixed by the Board of Directors
within ten (10) days after the date on which such request is received by
the Secretary, then the Demand Record Date shall be the tenth (10th) day
after the first day on which a valid written request to set a Demand
Record Date is received by the Secretary. To be valid, such written
request shall set forth the purpose or purposes for which the Special
Meeting is to be held, shall be signed by one or more shareholders of
record (or their duly authorized proxies or other representatives), shall
bear the date of signature of each such shareholder (or proxy or other
representative) and shall set forth all information about each such
shareholder and about the beneficial owner or owners, if any, on whose
behalf the request is made that would be required to be set forth in a
shareholder's notice described in Section 8(c) of this Article I.
(c) In order for a shareholder or shareholders to demand a Special
Meeting, a written demand or demands for a Special Meeting by the holders
of record as of the Demand Record Date of shares representing at least ten
percent (10%) of all the votes entitled to be cast on any issue proposed
to be considered at the Special Meeting must be delivered to the
Corporation. To be valid, each written demand by a shareholder for a
Special Meeting shall set forth the specific purpose or purposes for which
the Special Meeting is to be held (which purpose or purposes shall be
limited to the purpose or purposes set forth in the written request to set
a Demand Record Date received by the Corporation pursuant to subsection
(b) of this Section 2), shall be signed by one or more persons who as of
the Demand Record Date are shareholders of record (or their duly
authorized proxies or other representatives), shall bear the date of
signature of each such shareholder (or proxy or other representative), and
shall set forth the name and address, as they appear in the Corporation's
books, of each shareholder signing such demand and the class or series and
number of shares of the Corporation that are owned of record and
beneficially by each such shareholder, shall be sent to the Secretary by
hand or by certified or registered mail, return receipt requested, and
shall be received by the Secretary within seventy (70) days after the
Demand Record Date.
(d) The Corporation shall not be required to call a Special Meeting
upon shareholder demand unless, in addition to the documents required by
subsection (c) of this Section 2, the Secretary receives a written
agreement signed by each Soliciting Shareholder (as defined herein),
pursuant to which each Soliciting Shareholder, jointly and severally,
agrees to pay the Corporation's costs of holding the Special Meeting,
including the costs of preparing and mailing proxy materials for the
Corporation's own solicitation, provided that if each of the resolutions
introduced by any Soliciting Shareholder at such meeting is adopted, and
each of the individuals nominated by or on behalf of any Soliciting
Shareholder for election as director at such meeting is elected, then the
Soliciting Shareholders shall not be required to pay such costs. For
purposes of this subsection (d), the following terms shall have the
meanings set forth below:
(i) "Affiliate" of any Person shall mean any Person that, directly
or indirectly through one or more intermediaries, controls, is controlled
by or is under common control with such first Person.
(ii) "Participant" shall have the meaning assigned to such term in
Rule 14a-11 promulgated under the Exchange Act.
(iii) "Person" shall mean any individual, partnership, firm,
corporation, association, trust, unincorporated organization or other
entity, as well as any syndicate or group deemed to be a person under
Section 14(d)(2) of the Exchange Act.
(iv) "Proxy" shall have the meaning assigned to such term in Rule
14a-1 promulgated under the Exchange Act.
(v) "Solicitation" shall have the meaning assigned to such term in
Rule 14a-1 promulgated under the Exchange Act.
(vi) "Soliciting Shareholder" shall mean, with respect to any Special
Meeting demanded by a shareholder or shareholders, any of the following
Persons:
(a) if the number of shareholders signing the demand or demands for
a meeting delivered to the Corporation pursuant to subsection (c) of this
Section 2 is ten (10) or fewer, then each shareholder signing any such
demand;
(b) if the number of shareholders signing the demand or demands for
a meeting delivered to the Corporation pursuant to subsection (c) of this
Section 2 is more than ten, then each Person who either (I) was a
Participant in any Solicitation of such demand or demands or (II) at the
time of the delivery to the Corporation of the documents described in
subsection (c) of this Section 2, had engaged or intended to engage in any
Solicitation of Proxies for use at such Special Meeting (other than a
Solicitation of Proxies on behalf of the Corporation); or
(c) any Affiliate of a Soliciting Shareholder, if a majority of the
directors then in office determine, reasonably and in good faith, that
such Affiliate should be required to sign the written notice described in
subsection (c) of this Section 2 and/or the written agreement described in
this subsection (d) in order to prevent the purposes of this Section 2
from being evaded.
(e) Except as provided in the following sentence, any Special
Meeting shall be held at such hour and day as may be designated by
whichever of the President and CEO or the Board of Directors shall have
called such meeting. In the case of any Special Meeting called by the
Board of Directors or the President and CEO upon the demand of
shareholders (a "Demand Special Meeting"), such meeting shall be held at
such hour and day as may be designated by the Board of Directors;
provided, however, that the date of any Demand Special Meeting shall be
not more than seventy (70) days after the Meeting Record Date; and
provided further that in the event that the directors then in office fail
to designate an hour and date for a Demand Special Meeting within ten (10)
days after the date that valid written demands for such meeting by the
holders of record as of the Demand Record Date of shares representing at
least ten percent (10%) of all the votes entitled to be cast on any issue
proposed to be considered at the Special Meeting are delivered to the
Corporation (the "Delivery Date"), then such meeting shall be held on the
one hundredth (100th) day after the Delivery Date or, if such one
hundredth (100th) day is not a Business Day (as defined below), on the
first preceding Business Day. In fixing a meeting date for any Special
Meeting, the President and CEO or the Board of Directors may consider such
factors as the President and CEO or the Board of Directors deem relevant
within the good faith exercise of his or its business judgment, including,
without limitation, the nature of the action proposed to be taken, the
facts and circumstances surrounding any demand for such meeting, and any
plan of the Board of Directors to call an Annual Meeting or a Special
Meeting for the conduct of related business. Any Special Meeting may be
adjourned by the chairman of the meeting from time to time and place to
place without notice other than announcement at the meeting. At any
adjourned Special Meeting the Corporation may transact any business which
might have been transacted at the Special Meeting as originally called.
In accordance with the provisions of applicable law, the Board of
Directors acting by resolution may postpone and reschedule any previously
scheduled Special Meeting; provided, however, that a Demand Special
Meeting shall not be postponed beyond the one hundredth (100th) day
following the Delivery Date.
(f) The Corporation may engage nationally or regionally recognized
independent inspectors of elections to act as an agent of the Corporation
for the purpose of promptly performing a ministerial review of the
validity of any purported written demand or demands for a Special Meeting
received by the Secretary. For the purpose of permitting the inspectors
to perform such review, no purported demand shall be deemed to have been
delivered to the Corporation until the earlier of (i) five (5) Business
Days following receipt by the Secretary of such purported demand and (ii)
such date as the independent inspectors certify to the Corporation that
the valid demands received by the Secretary represent at least ten percent
(10%) of all the votes entitled to be cast on each issue proposed to be
considered at the Special Meeting. Nothing contained in this subsection
shall in any way be construed to suggest or imply that the Board of
Directors or any shareholder shall not be entitled to contest the validity
of any demand, whether during or after such five (5) Business Day period,
or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect
thereto).
(g) For purposes of these By-Laws, "Business Day" shall mean any day
other than a Saturday, a Sunday or a day on which banking institutions in
the State of Nebraska are obligated by law or executive order to close.
Section 3. Notice of Meeting. Written or printed notice stating the
place, date and time of an annual meeting or Special Meeting shall be
delivered not less than ten (10) nor more than sixty (60) days before the
date of the meeting, either personally or by mail, by or at the direction
of the President and CEO, the Secretary, or the officer or persons calling
the meeting, to each shareholder of record entitled to vote at such
meeting. In the event of any Demand Special Meeting, such notice of
meeting shall be sent not more than thirty (30) days after the Delivery
Date. If mailed, such notice shall be deemed delivered when deposited in
the United States mails addressed to the shareholder at the address
appearing on the stock transfer books of the Corporation, postage prepaid.
Notwithstanding the foregoing provisions of this Section, a shareholder or
shareholders calling a special meeting shall also comply with all
applicable requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder with respect to the
matters set forth in this Section. A shareholder's attendance at a
meeting of shareholders waives objection to a lack of notice or defective
notice of such meeting, unless the shareholder at the beginning of the
meeting objects to holding the meeting or transacting the meeting, and
waives objection to consideration of a particular matter at the meeting
that is not within the purposes described in the meeting notice, unless
the shareholder objects to considering the matter when it is presented.
A notice of an Annual Meeting shall include a description of the
purpose or purposes for which the meeting is called. In the case of any
Special Meeting, (a) the notice of meeting shall describe any business
that the Board of Directors shall have theretofore determined to bring
before the meeting and (b) in the case of a Demand Special Meeting, the
notice of meeting (i) shall describe any business set forth in the
statement or purpose of the demands received by the Corporation in
accordance with Section 2 of Article I of these By-Laws and (ii) shall
contain all of the information required in the notice received by the
Corporation in accordance with Section 8(c) of Article I of these By-Laws.
If an Annual Meeting or Special Meeting is adjourned to a different date,
time or place, then the Corporation shall not be required to give notice
of the new date, time or place if the new date, time or place is announced
at the meeting before adjournment; provided, however, that if a new
Meeting Record Date for an adjourned meeting is or must be fixed, then the
Corporation shall give notice of the adjourned meeting to persons who are
shareholders as of the new Meeting Record Date.
Section 4. Record Date. So that the Corporation may determine the
shareholders entitled to notice of or to vote at any meeting of
shareholders, or any adjournment thereof, the Board of Directors may fix a
record date which record date shall not precede the date of any annual or
Special Meeting of shareholders by more than seventy (70) days (the
"Meeting Record Date"), and only such shareholders as shall be
shareholders of record on the date so fixed shall be entitled to such
notice of and to vote at such meeting, as the case may be, notwithstanding
any transfer of any stock on the books of the Corporation after any such
record date fixed as aforesaid. In the case of any Demand Special Meeting
(as defined in Section 2 of Article I of these By-Laws), (i) the Meeting
Record Date shall be not later than the 30th day after the Delivery Date
(as defined in Section 2 of Article I of these By-Laws) and (ii) if the
Board of Directors fails to fix the Meeting Record Date within thirty (30)
days after the Delivery Date, then the close of business on such 30th day
shall be the Meeting Record Date. Except as provided by the Nebraska
Business Corporation Act, as amended (the "Act") for a court-ordered
adjournment, a determination of shareholders entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the
meeting, unless the Board of Directors fixes a new Meeting Record Date,
which it must do if the meeting is adjourned to a date more than one
hundred twenty (120) days after the date fixed for the original meeting.
Subject to the procedures set forth in Section 2(b) of Article I of these
By-Laws relating to the fixing of a Demand Record Date (as defined
therein), the Board of Directors may also fix a future date as the record
date to determine the shareholders entitled to take any other action.
Such record date may not be more than seventy (70) days before the action
requiring a determination of shareholders. The record date for
determining shareholders entitled to a distribution (other than a
distribution involving a purchase, redemption or other acquisition of the
Corporation's shares) or a share dividend is the date on which the Board
of Directors authorizes the distribution or share dividend, as the case
may be, unless the Board of Directors fixes a different record date.
Section 5. Voting Lists. After fixing a record date for a
shareholders' meeting, the Secretary of the Corporation shall prepare a
complete list of the shareholders entitled to notice of such meeting,
arranged in alphabetical order with the address of and the number of
shares held by each. The list shall be available for inspection by any
shareholder during usual business hours at the principal office of the
Corporation beginning two (2) business days after notice of the meeting is
given for which the list was prepared and continuing through the meeting.
Such list, or a duplicate thereof, shall also be produced and kept open
at the time and place of the meeting and shall be subject to the
inspection of any shareholder at any time during the meeting or any
adjournment thereof. The original stock transfer books shall be prima
facie evidence as to who are the shareholders entitled to examine such
record or transfer books or to vote at any meeting of shareholders.
Section 6. Quorum. A majority of the outstanding shares entitled to
vote, represented in person or by proxy, shall constitute a quorum at a
meeting of shareholders. Once a share is represented for any purpose at a
meeting it shall be deemed present for quorum purposes for the remainder
of the meeting and for any adjournment of that meeting, unless a new
record date is set for that adjourned meeting. The holders (or their
representatives) of a majority of the shares present at a meeting, even
though less than a majority of the shares outstanding, may adjourn the
meeting from time to time without notice other than an announcement at the
meeting, until such time as a quorum is present. At any such adjourned
meeting at which a quorum is present, any business may be transacted which
might have been transacted at the original meeting. If a quorum exists,
shareholder action on a matter, other than the election of directors,
shall be approved if the shareholder votes cast favoring such action
exceed the votes cast opposing the action, unless the Articles of
Incorporation of the Corporation or the Nebraska Business Corporation Act
(the "Act") requires a greater number of affirmative votes.
Section 7. Proxies. At all meetings of the shareholders, a
shareholder may vote either in person or by proxy executed in writing by a
shareholder or his or her duly authorized attorney-in-fact. No proxy
shall be valid after eleven (11) months from the date of its execution,
unless otherwise provided in the proxy.
Section 8. Meeting Procedure.
(a) Conduct of Meetings. The Chairman of the Board or the President
and CEO, or in their absence such other officer as may be designated by
the Board of Directors, shall be the chairman at shareholders' meetings.
The Secretary of the Corporation shall be the secretary at shareholders'
meetings, but in the Secretary's absence the chairman of the meeting may
appoint a secretary for the meeting. The opening and closing of the polls
for matters upon which the shareholders will vote at a meeting shall be
announced at the meeting by the chairman of the meeting. The Board of
Directors may, to the extent not prohibited by law, adopt by resolution
such rules and regulations for the conduct of the meeting of shareholders
as it shall deem appropriate. Except to the extent inconsistent with such
rules and regulations as adopted by the Board of Directors, the chairman
of any meeting of shareholders shall have the right and authority to
prescribe such rules, regulations or procedures and to do all acts as, in
the judgment of the chairman, are appropriate for the proper conduct of
the meeting. Such rules, regulations or procedures, whether adopted by
the Board of Directors or prescribed by the chairman of the meeting, may
to the extent not prohibited by law include, without limitation, the
following: (i) the establishment of an agenda or order of business for
the meeting; (ii) rules and procedures for maintaining order at the
meeting and the safety of those present; (iii) limitations on attendance
at or participation in the meeting to shareholders of record of the
Corporation, their duly authorized and constituted proxies (which shall be
reasonable in number) or such other persons as the chairman of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time
fixed for the commencement thereof; and (v) limitations on the time
allotted to questions or comments by participants.
(b) Annual Meetings. At an annual meeting, only such business shall
be conducted, and only nominations for the election of directors shall be
made, as shall have been properly brought before the meeting in accordance
with these By-Laws. To be properly brought before an annual meeting,
business or nominations must (i) be specified in the notice of the meeting
(or any supplement thereto) given by or at the direction of the Board of
Directors; (ii) otherwise properly be brought before the meeting by or at
the direction of the Board of Directors; or (iii) otherwise (A) properly
be requested to be brought before the meeting by a shareholder of record
entitled to vote in the election of directors generally and (B) constitute
a proper subject to be brought before such meeting. For nominations or
other business to be properly requested to be brought before an annual
meeting by a shareholder of record, any shareholder who intends to bring
any matter before an annual meeting and is entitled to vote on such matter
must deliver written notice of such shareholder's intent to bring the
matter before the annual meeting, either by personal delivery or by United
States mail, postage prepaid, to the Secretary of the Corporation. Such
notice must be received by the Secretary not less than seventy-five (75)
nor more than one hundred (100) days prior to (x) the fourth (4th)
Wednesday of April in the applicable year, in the case of the Annual
Meeting scheduled to be held on the fourth (4th) Wednesday of April in the
applicable year or (y) the first anniversary of the immediately preceding
annual meeting in the case of any other annual meeting; provided, however,
that in the event that the date for which the annual meeting is called is
advanced by more than thirty (30) days or delayed by more than sixty (60)
days from the date specified in clause (x) or (y), as the case may be,
notice by the shareholder to be timely must be so delivered not earlier
than the close of business on the one hundredth (100th) day prior to the
date of such annual meeting and not later than the close of business on
the later of the seventy-fifth (75th) day prior to the date of such annual
meeting or the tenth (10th) day following the day on which public
announcement of the date of such meeting is first made. In no event shall
the announcement of an adjournment of an annual meeting of shareholders
commence a new time period for the giving of a shareholder notice as
described above.
A shareholder's notice to the Secretary required by this Section 8(b)
of Article I of these By-Laws shall set forth as to each matter the
shareholder proposes to bring before the annual meeting: (i) in the case
of any proposed nomination for election or re-election as a director, (A)
the name, age, business and residence addresses, and principal occupation
or employment of each nominee; (B) a description of all arrangements or
understandings between the shareholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder; (C) such
other information regarding each nominee proposed by such shareholder as
would be required to be included in a proxy statement filed pursuant to
the proxy rules of the Securities and Exchange Commission; and (D) the
written consent of each nominee to serve as a director of the Corporation
if so elected; (ii) in the case of any other business that such
shareholder proposes to bring before the annual meeting, (A) a brief
description of the business to be brought before the meeting and the
reasons for conducting such business at the meeting and (B) any material
interest of the shareholder in such business; (iii) the name and address
of the shareholder intending to propose such business; (iv) the number of
shares of stock of the Corporation beneficially held, either personally or
in concert with others, by the shareholder, and (v) a representation that
the shareholder is a holder of stock of the Corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting
to make such nomination or present such proposal. The Corporation may
require any proposed nominee to furnish such other information as may
reasonably be required by the Corporation to determine the eligibility of
such proposed nominee to serve as a director of the Corporation. No
business shall be conducted at an annual meeting except in accordance with
the procedures set forth in this Section 8(b) of Article I of these By-
Laws. The chairman of the annual meeting shall, if the facts warrant,
determine and declare to the annual meeting that a nomination was not made
or business was not properly brought before the meeting in accordance with
the provisions hereof and, if the chairman should so determine, the
chairman shall so declare to the annual meeting that any such nomination
shall be disregarded and/or any such business not properly brought before
the annual meeting shall not be transacted.
Notwithstanding anything in the fourth sentence of this Section 8(b)
of Article I to these By-Laws to the contrary, in the event that the
number of directors to be elected to the Board of Directors is increased
and there is no public announcement naming all of the nominees for
director or specifying the size of the increased Board of Directors made
by the Corporation at least eighty-five (85) days prior to the date
specified in clause (x) or (y), as the case may be, of such sentence, a
shareholder's notice required by this Section 8(b) of Article I of these
By-Laws with respect to any nomination of a person for election to the
Board of Directors shall also be considered timely, but only with respect
to nominees for any new positions created by such increase, if it shall be
received by the Secretary of the Corporation not later than the close of
business on the tenth (10th) day following the day on which such public
announcement is first made by the Corporation.
(c) Special Meeting. At a Special Meeting, only such business shall
be conducted, and only nominations for the election of directors shall be
made, as shall have been described in the notice of meeting sent to
shareholders pursuant to Section 3 of Article I of these By-Laws.
Nominations of persons for election to the Board of Directors may be made
at a Special Meeting at which directors are to be elected pursuant to such
notice of meeting (i) by or at the direction of the Board of Directors or
(ii) by any shareholder of the Corporation who (A) is a shareholder of
record, (B) is entitled to vote in the election of directors at the
meeting and (C) complies with the notice procedures set forth in this
Section 8(c) of Article I of these By-Laws. Any shareholder desiring to
nominate persons for election to the Board of Directors at such a Special
Meeting must deliver written notice of such shareholder's proposed
nomination, either by personal delivery or by United States mail, postage
prepaid, to the Secretary of the Corporation. Such notice must be
received by the Secretary not more than ninety (90) days prior to such
Special Meeting and not later than the close of business on the later of
(x) the sixtieth (60th) day prior to such Special Meeting or (y) the tenth
(10th) day following the day on which public announcement is first made of
the date of such Special Meeting and of the nominees proposed by the Board
of Directors to be elected at such meeting.
A shareholder's notice to the Secretary required by this Section 8(c)
of Article I of these By-Laws shall set forth (i) the name, age, business
and residence addresses, and principal occupation or employment of each
nominee; (ii) a description of all arrangements or understandings between
the shareholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations
are to be made by the shareholder; (iii) such other information regarding
each nominee proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission; (iv) the written consent of each
nominee to serve as a director of the Corporation if so elected; (v) the
name and address of the shareholder intending to propose such business;
(vi) the number of shares of stock of the Corporation beneficially held,
either personally or in concert with others, by the shareholder; and (vii)
a representation that the shareholder is a holder of stock of the
Corporation entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to make such nomination. The
Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine
the eligibility of such proposed nominee to serve as a director of the
Corporation. No business shall be conducted at a Special Meeting except
in accordance with the procedures set forth in this Section 8(c) of
Article I of these By-Laws. The chairman of the Special Meeting shall, if
the facts warrant, determine and declare to the Special Meeting that a
nomination was not made or business was not properly brought before the
meeting in accordance with the provisions hereof and, if he should so
determine, he shall so declare to the Special Meeting that any such
nomination shall be disregarded and/or any such business not properly
brought before the Special Meeting shall not be transacted.
Section 9. Voting of Shares. Subject to the provisions of Section 10
of this Article I, each shareholder entitled to vote shall be entitled to
one vote for each share of stock held by him or her upon each matter
submitted to vote at a meeting of shareholders.
Section 10. Cumulative Voting. In all elections for directors, every
shareholder entitled to vote at such election shall have the right to
vote, in person or by proxy, the number of shares owned by him or her for
as many persons as there are directors to be elected and for whose
election the shareholder has a right to vote, or to cumulate said shares
and give one candidate as many votes as the number of directors multiplied
by the number of his or her shares shall equal, or to distribute them upon
the same principle among as many candidates as he or she shall think fit.
ARTICLE II
DIRECTORS
Section 1. Number, Nomination and Qualification. The business and
affairs of the Corporation shall be managed by a Board of Directors
consisting of not less than twelve (12) nor more than eighteen (18)
directors. The number of directors to serve during any year shall be
fixed by resolution of the Board of Directors at its last regular meeting
during the previous calendar year, but may also be fixed by resolution of
the Board of Directors or the Executive Committee at a regular or special
meeting of the Board of Directors or Executive Committee held prior to the
annual meeting of shareholders in the year of such annual meeting. In the
event of failure of the Board of Directors or Executive Committee to fix
the number of directors at such meetings, the number shall be the same as
last fixed by the Board of Directors. Nominations of directors to be
elected may only be made by the Board of Directors, by a committee of the
Board of Directors designated by the Board to make such nominations, or by
any shareholder of record entitled to vote generally in elections of
directors where the shareholder complies with the requirements of this
Section. Any shareholder of record entitled to vote generally in
elections of directors may nominate one or more persons for election as
directors at a meeting of shareholders only if such shareholder's intent
to make such nomination or nominations has been given, either by personal
delivery or by United States certified mail, postage prepaid, to the
Secretary of the Corporation (i) with respect to an election to be held at
an annual meeting of shareholders, not less than ninety (90) days in
advance of such meeting; provided that if the annual meeting of
shareholders is held earlier than the fourth (4th) Wednesday of April
specified in Article I, Section 1 hereof, such notice must be given within
ten (10) days after the first public disclosure, which may include any
public filing with the Securities and Exchange Commission or a press
release to Dow Jones & Company or any similar service, of the earlier date
of the annual meeting, and (ii) with respect to an election to be held at
a special meeting of shareholders for the election of directors (including
a meeting to remove directors and fill the vacancies thereby created or to
fill vacancies caused by an increase in the number of directors), not
later than the date on which the shareholder delivers his or her written
notice to the Secretary of the Corporation calling such special
shareholders' meeting.
Each such notice of director nominations given to the Secretary of
the Corporation shall set forth the following; (i) the class and number of
shares of the Corporation which are beneficially owned by the shareholder;
(ii) the name and address, as they appear on the Corporation's records, of
the shareholder who intends to make the nomination, or the documents
necessary to constitute the shareholder a holder of record of the stock
beneficially owned, and the name and residence address of the person or
persons to be nominated; (iii) a representation that the shareholder is a
holder of record of stock of the Corporation entitled to vote at such
meeting, and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (iv) a description
of all arrangements or understandings between the shareholder and each
nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
shareholder; (v) such other information regarding each nominee proposed by
such shareholder as would be required to be disclosed in solicitations of
proxies for election of directors, or would be otherwise required,
pursuant for election of directors, or would be otherwise required,
pursuant to Schedule 14B under the Securities Exchange Act of 1934, as
amended, including, but not limited to, any information that would be
required to be included in the proxy statement filed pursuant to
Regulation 14A had the nominee been nominated by the Board of Directors;
and (vi) the written consent of each nominee to his or her nomination and
willingness to serve as director of the Corporation if elected.
No person shall be eligible to serve as a director of the Corporation
unless nominated in accordance with the procedures set forth in this
Section. In the event the officer presiding at the shareholders' meeting
shall, if the facts warrant, determine that a nomination was not made in
accordance with the procedures prescribed by this Section, the presiding
officer shall so declare to the meeting and the defective nomination shall
be disregarded. Notwithstanding the foregoing provisions of this Section,
a shareholder shall also comply with all applicable requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section. Any
action at an annual or special meeting of shareholders to eliminate or
modify the procedures set forth in this Section shall not operate to
eliminate or modify such procedures with respect to any proposed
nomination at such annual or special meeting.
Section 2. Classes. The directors shall be divided into three (3)
classes. Each class shall consist, as nearly as possible, of one-third
(1/3) of the total number of directors constituting the whole Board of
Directors. At each annual meeting of shareholders, successors to the
class of directors whose term expires at that annual meeting shall be
elected for a three (3) year term. A director shall hold office until the
annual meeting in the year in which the director's term expires and until
the director's successor shall be elected and qualified, subject however,
to prior death, resignation, retirement, disqualification or removal from
office. If the number of directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, and any additional
director of any class elected to fill a vacancy resulting from an increase
in such class shall hold office for a term that shall coincide with the
remaining term of that class, but in no case will a decrease in the number
of directors shorten the term of any director then in office. The
termination of employment other than by retirement of any director who is
an employee of the Corporation shall be cause for disqualification from
further board membership unless waived by the Board of Directors.
Section 3. Vacancies. If the office of any director becomes vacant
by reason of death, resignation, disqualification, removal from office, or
otherwise, a majority of the remaining directors (or the sole remaining
director), though less than a quorum, may appoint a successor, who shall
hold office for the unexpired term of the director he or she succeeds. If
there shall be no directors in office, the shareholders shall be entitled
to fill the vacancies of the Board of Directors.
Section 4. Quorum. The presence of a majority of the number of
directors prescribed, or if no number is prescribed, the number in office
immediately before the meeting begins, shall constitute a quorum for the
transaction of any business at any meeting of the Board of Directors. If
a quorum is present when a vote is taken, the affirmative vote of a
majority of the directors present when such vote is taken shall be the act
of the Board of Directors. If less than a quorum is present at any
meeting, the majority of those present may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a
quorum is present.
Section 5. Annual Organizational Meeting. The annual organizational
meeting of the Board of Directors shall be held without notice other than
this Bylaw immediately following adjournment of the annual meeting of
shareholders and shall be held at the same place as the annual meeting of
shareholders unless some other place is agreed upon by vote of a majority
of the then elected Board of Directors.
Section 6. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and place either within
or without the State of Nebraska as shall from time to time be determined
by the Board.
Section 7. Special Meetings. Special meetings of the Board of
Directors may be called by the President and CEO on three (3) days' notice
to each director by mail or forty-eight (48) hours' notice by personal
delivery of written notice or by facsimile transmission; special meetings
shall be called by the President and CEO or Secretary in like manner and
on like notice on the written request of two (2) directors. In all cases,
notice shall be addressed or otherwise delivered to the director at the
director's last known address.
Section 8. Action Without a Meeting. Any action required to be taken
at a meeting of the Board of Directors may be taken without a meeting, if
a consent in writing, setting forth the action so taken, shall be signed
by all of the directors. Such consent shall have the same effect as a
unanimous vote. The consent may be executed by the directors in
counterparts.
Section 9. Presumption of Assent. A director of the Corporation who
is present at a meeting of the Board of Directors or a committee thereof
at which action on any corporate matter is taken shall be presumed to have
assented to the action taken unless (a) he or she objects at the beginning
of the meeting or promptly upon his or her arrival to holding it or
transacting business at the meeting, or (b) his or her dissent or
abstention shall be entered in the minutes of the meeting, or (c) he or
she shall deliver written notice of such dissent to or abstention from
such action with the person acting as the Secretary of the meeting before
the adjournment thereof or to the Secretary of the Corporation immediately
after the adjournment of the meeting. Such right to dissent shall not be
available to a director who voted in favor of such action.
Section 10. Compensation. Directors shall receive such compensation
for their services as may be determined by resolution of the Board of
Directors from time to time and, in addition, a fixed sum and expenses of
attendance, if any, at each regular or special meeting of the Board of
Directors; provided that nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity
and receiving compensation therefor. Members of special or standing
committees may be allowed compensation for attending committee meetings as
determined by the Board of Directors.
Section 11. Telephonic Meetings. Members of the Board of Directors
or any committee appointed by the Board of Directors may participate in a
meeting of such Board or committee by means of a conference telephone or
similar communications equipment by which all persons participating in the
meeting can hear each other at the same time. Participation by such means
shall constitute presence in person at a meeting.
Section 12. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees,
each committee to consist of three (3) or more directors and shall have
such functions and responsibilities as the Board shall prescribe in said
resolution of appointment subject to limitations provided by the Act.
Such committee or committees shall have such name or names as may be
determined from time to time by resolution of the Board. The Committees
shall keep regular minutes of their proceedings and report the same to the
Board of Directors as required.
Section 13. Executive Committee. There shall be an Executive
Committee appointed annually by the Board of Directors at its annual
meeting consisting of not less than three (3) nor more than seven (7) of
the directors as fixed by the Board of Director's resolution of
appointment and shall include the President and CEO. Subject to
limitations provided by the Act, the Executive Committee shall have and
may exercise all powers of the Board of Directors when the Board is not in
session. Meetings of the Executive Committee may be called by the
President and CEO or a member of the Executive Committee upon at least two
(2) days' prior oral notice or written notice delivered personally or by
facsimile transmission. At all meetings of the Executive Committee, a
majority of the number of directors as appointed to the Executive
Committee by the Board of Directors shall constitute a quorum for the
transaction of business.
ARTICLE III
OFFICERS
Section 1. Number and Qualification. The officers of the
Corporation shall be the President and CEO, one or more Vice Presidents
(as the Board of Directors shall determine), a Secretary, a Treasurer and
a Controller. The Board of Directors may also elect a Chairman of the
Board, one or more Presidents of Operating Divisions, a Chief Financial
Officer and such other officers and agents as may be deemed necessary by
the Board of Directors. Any two or more offices may be held by the same
person.
Section 2. Election and Tenure. The Board of Directors, at its first
meeting after each annual meeting of shareholders, shall elect the
President and CEO, one or more Vice Presidents, a Secretary, a Treasurer
and a Controller, and may also elect a Chairman of the Board of Directors
and such other officers that it shall determine and as are provided in
Section 1 of this Article III, none of whom is required to be a member of
the Board of Directors except for the President and CEO and the Chairman
of the Board, and all of whom shall hold their offices for such terms and
shall exercise such powers and perform such duties as are prescribed in
these By-Laws and as shall be determined from time to time by the Board of
Directors. The officers of the Corporation shall hold office until their
successors are elected and qualify in their stead. Any officer elected or
appointed by the Board of Directors may be removed and his or her
employment terminated at any time by the affirmative vote of a majority of
the whole Board of Directors, or any officer may be removed and his or her
employment terminated at any time by the President and CEO. If the office
of any officer required to be filled pursuant to Section 1 of this Article
III becomes vacant for any reason, the vacancy shall be filled by the
Board of Directors.
Section 3. Duties and Authority of Officers.
(a) President and CEO. The President and CEO shall be the chief
executive officer of the Corporation and, subject to the control of the
Board of Directors, shall in general supervise and control all of the
business and affairs of the Corporation. The President and CEO shall be a
member of the Executive Committee and shall be an ex officio member of all
other committees of the Board of Directors. The President and CEO may
sign, with the Secretary or any other proper officer of the Corporation
thereunto authorized by the Board of Directors, certificates for shares of
the Corporation and deeds, mortgages, bonds, contracts or other
instruments which the Board of Directors has authorized to be executed,
except in cases where the signing and execution thereof shall be expressly
delegated by the Board of Directors or by these By-Laws to some other
officer or agent of the Corporation or shall be required by law to be
otherwise signed or executed; and in general, shall perform all duties
incident to the office of President and CEO and such other duties as may
be prescribed by the Board of Directors from time to time.
(b) Chairman of the Board. The Chairman of the Board, if elected,
shall preside at all meetings of the Board of Directors and shareholders
and shall have such other duties and responsibilities as from time to time
may be assigned by the President and CEO or by the Board of Directors.
(c) Division Presidents. Each Division President, when elected,
shall be the chief operating officer of that division of the operations
and business of the Corporation and in such office shall have such duties
and authority as would normally inhere to such office and such other
duties as from time to time may be assigned by the President and CEO or by
the Board of Directors.
(d) Executive Vice President. An Executive Vice President, when
elected, shall in the absence or disability of the President and CEO
perform the duties and exercise the powers of the President and CEO and
shall perform such other duties as from time to time may be assigned by
the President and CEO or by the Board of Directors.
(e) Chief Financial Officer. The Chief Financial Officer, when
elected, shall be the chief financial officer of the Corporation, and
subject to the direction of the President and CEO, shall in general
supervise and control the financial affairs of the Corporation. Absent
the election of another individual as the Controller, the Chief Financial
Officer shall also be elected as the Controller of the Corporation and
shall perform the duties of the Controller as described below. In the
absence or disability of either the Secretary or the Treasurer, the Chief
Financial Officer shall perform the duties and exercise the powers of the
Secretary or the Treasurer, as the case may be, as described below.
(f) Vice Presidents. The Vice Presidents, in the order of their
length of service, in the absence of the President and CEO or any
previously-elected and serving Executive Vice President, or in the event
of his or her death, inability or refusal to act, shall perform the duties
of the President and CEO, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the President and CEO, and
shall perform such other duties as from time to time may be assigned by
the President and CEO or by the Board of Directors.
(g) Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of the shareholders and record all votes and
the minutes of all proceedings in a book to be kept for that purpose and
shall perform like duties for the committees of the Board of Directors.
The Secretary shall give, or cause to be given, notice of all meetings of
the shareholders and of the Board of Directors, shall authenticate the
corporate records of the Corporation, keep a register of the post office
address of each shareholder which shall be furnished to the Secretary by
such shareholder, sign with the President and CEO, the Chairman of the
Board, or a Vice President certificates for shares of the Corporation the
issuance of which shall be authorized by resolution of the Board of
Directors, have general charge of the stock transfer books of the
Corporation, and in general perform all duties incident to the office of
Secretary and such other duties as may be prescribed from time to time by
the Board of Directors or the President and CEO.
(h) Treasurer. The Treasurer shall have custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts
and disbursements in books belonging to the Corporation and shall deposit
all moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation,
taking proper vouchers for such disbursements, and shall render to the
President and CEO and Directors, at the regular meetings of the Board of
Directors, or whenever they may require it, an account of all his or her
transactions as Treasurer. If required by the Board of Directors, the
Treasurer shall give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his or her office and for the
restoration to the Corporation, in case of his or her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his or her possession or under his
or her control belonging to the Corporation.
(i) Controller. The Controller shall be the chief accounting
officer of the Corporation and shall have full responsibility and control
of the accounting functions performed in the Corporation's offices,
branches and subsidiaries. As such, the Controller shall, subject to the
approval of the Board of Directors, establish accounting policies,
standardize and coordinate accounting practices, supervise all accounting
records and preparation of all financial statements and tax returns. The
Controller shall also direct the internal auditing of the Corporation and
advise the Audit Committee of the Board of Directors and the President and
CEO as to occurrences and procedures which may require attention. The
Controller shall have such other powers and duties as, from time to time,
may be assigned by the President and CEO or the Board of Directors .
Section 5. Compensation. The compensation of the officers shall be
fixed from time to time by the Board of Directors. No such payment shall
preclude any officer from serving the Corporation in any other capacity
and receiving compensation therefor.
ARTICLE IV
STOCK CERTIFICATES
Section 1. Form. Certificates of stock of the Corporation shall be
numbered and shall be entered in the books of the Corporation or the
transfer agent and registrar of the Corporation as and when issued.
Certificates shall exhibit the holder's name and number of shares held and
shall be signed by the President and CEO, the Chairman of the Board, the
Executive Vice President, the Chief Financial Officer, or a Vice
President, and by the Secretary or the Treasurer. The signatures of any
of the aforesaid officers of the Corporation may be facsimiles engraved,
lithographed, stamped or printed. The certificates shall be countersigned
by the transfer agent and registrar of the Corporation. If any officer
who has signed or whose facsimile signature has been used on any such
certificate shall cease to be such officer of the Corporation, whether
because of death, resignation or otherwise, before such certificate has
been delivered by the Corporation, such certificate when countersigned by
the transfer agent and registrar of the Corporation, shall nevertheless be
as effective in all respects as though the person who signed such
certificate or whose facsimile signature shall have been used thereon had
not ceased to be an officer of the Corporation. The procedures set forth
in this Section shall apply to all certificates of stock issued on or
after May 1, 1993.
Section 2. Transfer. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
transfer, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 3. Loss or Destruction. In case of loss or destruction of a
certificate of stock, no new certificate shall be issued in lieu thereof
except upon satisfactory proof to the Board of Directors or the transfer
agent of the Corporation of such loss or destruction. The Board of
Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost or destroyed certificate
or certificates, or such owner's legal representative, to advertise the
same in such manner as it shall require and give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate or certificates
alleged to have been lost or destroyed.
ARTICLE V
DIVIDENDS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Articles of Incorporation,
if any, may be declared by the Board of Directors at any regular or
special meeting, pursuant to law. For the purpose of determining
shareholders entitled to receive payment of any dividend, the Board of
Directors of the Corporation may fix in advance a date as the record date
for any such determination of shareholders, such date in any case to be
not more than seventy (70) days prior to the dividend payment date. If no
record date is fixed for the determination of shareholders entitled to
receive payment of a dividend, the day before the date on which the
resolution of the Board of Directors declaring such dividend is adopted
shall be the record date for such determination. Dividends may be paid in
cash, in property or in shares of capital stock. Before payment of any
dividend there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors may
from time to time, in their absolute discretion, think proper as a reserve
fund to meet contingencies, or for equalizing dividends, or for repairing
or maintaining any property of the Corporation, or for such other purpose
as the Board of Directors shall think conducive to the interest of the
Corporation, and the Board of Directors may abolish any such reserve in
the manner in which it was created.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
To the fullest extent permitted by law, the Corporation shall
indemnify any individual who was or is a party or threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (and whether or
not by or in the right of the Corporation) by reason of the fact that he
or she was a director or officer of the Corporation or was serving at the
request (whether formal or informal) of the Corporation as a director,
officer, employee, agent or fiduciary of another corporation, partnership,
joint venture, employee benefit plan, trust or other enterprise against
liability and/or expense incurred by such individual in connection
therewith to the fullest extent mandated or permitted under the Act or
other applicable law.
The indemnity provided for by this Article VI shall not be deemed to
be exclusive of any other rights to which those indemnified may be
otherwise entitled, nor shall the provisions of this Article VI be deemed
to prohibit the Corporation from extending its indemnification to cover
other persons or activities, to the extent permitted by the Act, any other
provision of applicable law or pursuant to any provision in the By-Laws.
ARTICLE VII
AMENDMENTS
These By-Laws may be altered, amended or repealed at any regular
meeting of the shareholders, or at a special meeting of the shareholders,
at which a quorum is present or represented, provided notice of the
proposed alteration, amendment or repeal be contained in the notice of
such special meeting, by the affirmative vote of a majority of the stock
entitled to vote at such meeting and present or represented thereat, or by
the affirmative vote of a majority of the Board of Directors present at
any regular meeting of the Board of Directors or at any special meeting of
the Board of Directors, if a quorum is present when the vote is taken, if
notice of the proposed alteration, amendment or repeal be contained in the
notice of such special meeting; provided, however, that no change of the
time or place for the election of directors shall be made within sixty
(60) days next before the day on which such election is to be held, and
that in case of any change of such time or place, notice thereof shall be
given to each shareholder in person or by letter mailed to his or her last
known address at least twenty (20) days before the election is held.
ARTICLE VIII
WAIVER OF NOTICE
Whenever any notice is required to be given to any shareholder or
director of the Corporation under the provisions of the Articles of
Incorporation, these By-Laws or the Act, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or
after the time stated therein, shall be equivalent to the giving of such
notice.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall end as of the 31st day of
December in each year.
FOLEY & LARDNER
A T T O R N E Y S A T L A W
FIRSTAR CENTER
777 EAST WISCONSIN AVENUE
MILWAUKEE, WISCONSIN 53202-5367
A MEMBER OF GLOBALEX
WITH MEMBER OFFICES IN
MADISON BERLIN
CHICAGO TELEPHONE (414) 271-2400 BRUSSELS
WASHINGTON, D.C. DRESDEN
JACKSONVILLE TELEX 26-819 FRANKFURT
ORLANDO LONDON
TALLAHASSEE (FOLEY LARD MIL) PARIS
TAMPA SINGAPORE
WEST PALM BEACH FACSIMILE (414) 297-4900 STUTTGART
TAIPEI
WRITER'S DIRECT LINE
February 23, 1998
Aliant Communications Inc.
1440 M Street
Lincoln, NE 68506
Ladies and Gentlemen:
We have acted as counsel for Aliant Communications Inc., a
Nebraska corporation (the "Company") in connection with the preparation of
a Form S-3 Registration Statement, including the Prospectus constituting a
part thereof (such Registration Statement as amended up to and including
the date hereof is referred to herein as the "Registration Statement"), as
filed with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, and relating to the issuance and sale of up to
$250,000,000 principal amount of debt securities (the "Debt Securities")
in the manner set forth in the Registration Statement and Prospectus. The
Debt Securities may be offered from time to time in one or more series.
Each series of Debt Securities will be issued under that certain Indenture
between the Company and U.S. Bank National Association, as Trustee, dated
as of February 23, 1998 (the "Indenture"), and a supplemental indenture
(the "Supplemental Indenture"), resolutions of the Board of Directors (the
"Board of Directors") or an officer's certificate (the "Officer's
Certificate"), as the case may be, providing for the issuance of such
series.
In connection with our opinion, we have examined: (a) the
Registration Statement, including the Prospectus; (b) the exhibits
(including those incorporated by reference) constituting a part of said
Registration Statement; (c) the Articles of Incorporation and By-laws of
the Company, as amended; (d) the Indenture; and (e) such other
proceedings, documents and records as we have deemed necessary to enable
us to render this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a validly existing corporation under the
laws of the State of Nebraska.
2. The Debt Securities, when executed, authenticated and
issued in the manner and for the consideration contemplated by the
Registration Statement and Prospectus, will be legally issued and valid
and binding obligations of the Company enforceable in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other comparable laws affecting
the enforcement of creditors' rights generally or the application and
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law); provided, that prior to
the issuance of the Debt Securities, there shall be taken various
proceedings in the manner contemplated by us as counsel, which include the
following:
(a) The completion of the requisite procedures under the
applicable provisions of the Securities Act of 1933, as amended,
and the Trust Indenture Act of 1939, as amended; and
(b) the due execution and delivery of the Supplemental
Indenture, the Board Resolutions or the Officer's Certificate,
as the case may be, creating the applicable series of Debt
Securities, and the filing of other documents and the taking of
such other actions or proceedings as provided in the Indenture
with respect to the issuance of the Debt Securities thereunder.
We hereby consent to the reference to our firm under the caption
"Legal Matters" in the Prospectus which is filed as part of the
Registration Statement, and to the filing of this opinion as an exhibit to
such Registration Statement. In giving this consent, we hereby disclaim
that we are experts within the meaning of Section 11 of the Securities Act
of 1933, as amended, or within the category of persons whose consent is
required by Section 7 of said Act.
Very truly yours,
/s/ FOLEY & LARDNER
FOLEY & LARDNER
ACCOUNTANTS' CONSENT
The Board of Directors
Aliant Communications Inc.:
We consent to the incorporation by reference in the registration statement
on Form S-3 of the Aliant Communications Inc. of our report, dated
February 7, 1997, relating to the consolidated balance sheets of Aliant
Communications Inc. and subsidiaries as of December 31, 1996 and 1995, and
related consolidated statements of earnings, stockholders' equity, and
cash flows and relating to the schedules to Form 10-K for each of the
years in the three-year period ended December 31, 1996, which reports
appear in the December 31, 1996 annual report on Form 10-K of Aliant
Communications Inc.
We also consent to the reference to our Firm under the heading "Experts"
in the registration statement.
February 19, 1998 KPMG PEAT MARWICK LLP
Lincoln, Nebraska
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
U.S. BANK NATIONAL ASSOCIATION
F.K.A. FIRST BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0417860
(State of Incorporation) (I.R.S. Employer
Identification No.)
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
ALIANT COMMUNICATIONS INC.
(Exact name of registrant as specified in its charter)
Nebraska 47-0632436
(State of Incorporation) (I.R.S. Employer
Identification No.)
1440 M Street
Lincoln, Nebraska 68508
(Address of Principal Executive Offices) (Zip Code)
Debt Securities
(Title of the Indenture Securities)
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GENERAL
1. General Information Furnish the following information as to the
Trustee.
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any
underwriter for the obligor is an affiliate of the Trustee, describe
each such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's
knowledge the obligor is not in default under any Indenture for which
the Trustee acts as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of this
statement of eligibility and qualification.
1. Copy of Articles of Association. *
2. Copy of Certificate of Authority to Commence Business. *
3. Authorization of the Trustee to exercise corporate trust powers
(included in Exhibits 1 and 2; no separate instrument).*
4. Copy of existing By-Laws. *
5. Copy of each Indenture referred to in Item 4. N/A.
6. The consents of the Trustee required by Section 321(b) of the
act.
7. Copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or
examining authority incorporated by reference to File Number
333-26679.
* Incorporated by reference to File Number 333-30939
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NOTE
The answers to this statement insofar as such answers relate to what
persons have been underwriters for any securities of the obligors within
three years prior to the date of filing this statement, or what persons
are owners of 10% or more of the voting securities of the obligors, or
affiliates, are based upon information furnished to the Trustee by the
obligors. While the Trustee has no reason to doubt the accuracy of any
such information, it cannot accept any responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, U.S. Bank National Association, an Association organized and
existing under the laws of the United States, has duly caused this
statement of eligibility and qualification to be signed on its behalf by
the undersigned, thereunto duly authorized, and its seal to be hereunto
affixed and attested, all in the City of Denver and State of Colorado on
the 23rd day of February, 1998.
U.S. BANK NATIONAL ASSOCIATION
[SEAL]
/s/ Gretchen L. Middents
Gretchen L. Middents
Assistant Vice President
/s/ William W. MacMillan
William W. MacMillan
Assistant Secretary
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EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that
reports of examination of the undersigned by Federal, State, Territorial
or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Dated: February 23, 1998
U.S. BANK NATIONAL ASSOCIATION
/s/ Gretchen L. Middents
Gretchen L. Middents
Assistant Vice President
