SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of
earliest event reported): August 26, 1997
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UNITED STATES CELLULAR CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 1-9712 62-1147325
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
8410 West Bryn Mawr, Ste. 700, Chicago, Illinois 60631
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(Address of principal executive offices) (Zip code)
Registrant's telephone number,
including area code: (773) 399-8900
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N/A
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(Former name or former address, if changed since last report.)
The Exhibit Index is located on Page 4 of 4 Total Pages.
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Item 5. Other Events
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On August 26, 1997, United States Cellular Corporation (the "Company")
completed the sale of its $250,000,000 principal amount of 7 1/4% Notes due
August 15, 2007. This Current Report on Form 8-K is being filed for the purpose
of filing as exhibits certain documents relating to such sale.
Item 7. Financial Statements, Pro Forma Financial Information
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and Exhibits
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(c) Exhibits
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The exhibits accompanying this report are listed in the
accompanying Exhibit Index.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
UNITED STATES CELLULAR CORPORATION
By: /s/ Kenneth R. Meyers
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Kenneth R. Meyers
Senior Vice President
and Chief Financial Officer
Date: August 28, 1997
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
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1 Underwriting Agreement, dated
August 21, 1997, between the
Company and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
4.1 Indenture, dated as of July 31,
1997, between the Company and The
First National Bank of Chicago,
as Trustee
4.2 Form of Global Note
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Exhibit 1
UNITED STATES CELLULAR CORPORATION
(a Delaware corporation)
Debt Securities
UNDERWRITING AGREEMENT
August 21, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
United States Cellular Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell up to $400,000,000 aggregate principal
amount 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 as senior
indebtedness (the "Debt Securities") under an indenture, dated as of July 31,
1997 (the "Indenture"), between the Company and The First National Bank of
Chicago, as trustee (the "Trustee"). Each series of Debt Securities may vary, as
applicable, 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 applicable 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
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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 issued (the "Underwritten 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
Underwritten 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
Underwritten Securities are to be purchased by the Underwriters, the form, time,
date and place of delivery and payment of the Underwritten Securities and any
other material variable terms of the Underwritten 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
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. 333-32521) 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"). Such registration statement 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"), and the Company has filed
such post-effective amendments thereto as may be required prior to the execution
of the applicable Terms Agreement and each such post-effective amendment has
been declared effective by the Commission. 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 Securities, in the form first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
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(b)
Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462(b)
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
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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 and 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, prior to the execution of the applicable Terms Agreement;
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, after the execution of the
applicable Terms Agreement.
SECTION 1. Representations and Warranties.
(a) 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, and as of the Closing Time (as defined below) (in each
case, a "Representation Date") as follows:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act. 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 (or such 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 (including
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 (including any Rule 462(b) Registration
Statement) and any amendments thereto
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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 and at the Closing Time,
neither the Prospectus nor any amendments and supplements thereto
included or will include an untrue statement of a material fact or
omitted or will 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.
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 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. 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.
(ii) The documents incorporated or deemed to be incorporated
by reference in the Registration Statement and the Prospectus, 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 and at the
Closing Time 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.
(iii) The accountants who certified the Company's consolidated
financial statements and supporting schedules included in or
incorporated by reference into the Registration Statement and the
Prospectus are independent public accountants with respect to the
Company and its consolidated subsidiaries as required by the 1933 Act
and the 1933 Act Regulations.
(iv) The consolidated financial statements of the Company
and its subsidiaries included in the Registration Statement and the
Prospectus present fairly the financial position
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and results of operations of the Company and its subsidiaries on a
consolidated basis at the respective dates or for the respective
periods to which they apply; such financial statements have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the respective periods
involved and such financial statements have been prepared, and the
combined financial statements of the Los Angeles SMSA Limited
Partnership, the Nashville/Clarksville MSA Limited Partnership and the
Baton Rouge MSA Limited Partnership (collectively, the "Cellular System
Partnerships") included in the Registration Statement and the
Prospectus have been properly compiled from the amounts and notes of
the underlying separate audited financial statements of the Cellular
System Partnerships, in each case in compliance with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations or
the 1934 Act and the 1934 Act Regulations, as the case may be; and the
supporting schedules included in the Registration Statement present
fairly 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.
(v) 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 consolidated
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its consolidated subsidiaries
other than those in the ordinary course of business which are material
to the Company and its consolidated subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, 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 jurisdiction in
which it owns or leases substantial properties or in which the conduct
of its business requires such qualification, except where the failure
to be so qualified
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or in good standing would not have a material adverse affect on the
Company and its consolidated subsidiaries considered as one enterprise.
(vii) Each consolidated subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
the 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 it owns or leases
substantial properties or in which the conduct of its business requires
such qualification, except where the failure to be so qualified or in
good standing would not have a material adverse affect on the Company
and its consolidated subsidiaries considered as one enterprise; all of
the issued and outstanding capital stock of each such consolidated
subsidiary has been duly authorized and validly issued and is fully
paid and non-assessable; and the Company owns a majority of the issued
and outstanding shares of capital stock of each of its consolidated
subsidiaries which are corporations and, except as described in the
Prospectus, owns such capital stock and its interests in each of its
consolidated subsidiaries which are not corporations, directly or
through one or more consolidated subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except such security interest, mortgage, pledge, lien,
encumbrance, claim or equity the enforcement of which, individually or
in the aggregate, would not have a material adverse affect on the
Company and its consolidated subsidiaries considered as one enterprise.
(viii) The Underwritten Securities being sold pursuant to the
applicable Terms Agreement 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, and when issued and authenticated in the manner provided for
in the Indenture and delivered against payment of the consideration
therefor specified in the applicable Terms Agreement, will have been
duly executed, authenticated, issued and delivered and will constitute
legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization or other similar
laws of general applicability now or hereafter in effect relating to or
affecting creditors' rights and to general equity principles, and will
be entitled to the benefits provided by the Indenture, which will be
substantially in the form included as an exhibit to the Registration
Statement; the Indenture has been, or prior to the issuance of the Debt
Securities thereunder will have been, duly authorized by the Board of
Directors of the Company, and when executed and delivered by the
Company and the Trustee (assuming due authorization, execution and
delivery by the Trustee), will constitute a legal, valid and binding
instrument enforceable against the Company in accordance with its terms
subject, as to enforcement, to bankruptcy, insolvency, reorganization
or other similar laws of general applicability now or hereafter in
effect relating to or affecting creditors' rights and to general equity
principles; and the Underwritten Securities and the Indenture conform
to the descriptions thereof in the Prospectus.
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(ix) 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.
(x) The authorized, issued and outstanding capital stock of
the Company is as set forth in or incorporated by reference into the
Registration Statement (except for subsequent issuances, if any,
pursuant to reservations or agreements referred to in the Prospectus);
all of the issued and outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable; the capital stock of the Company conforms to the
description thereof included in or incorporated by reference into the
Registration Statement and, except as set forth in the Prospectus, is
not subject to preemptive or other similar rights.
(xi) Neither the Company nor any of its consolidated
subsidiaries is in violation of its charter or by-laws or other
documents of organization, and none of the Company or any of its
consolidated subsidiaries is in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its
consolidated 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 consolidated subsidiaries is subject; the execution,
delivery and performance of this Underwriting Agreement, the applicable
Terms Agreement and the Indenture, and the consummation of the
transactions contemplated herein, therein and in the Registration
Statement and the Prospectus (including the issuance and sale of the
Underwritten Securities and the use of the proceeds from the sale of
the Underwritten Securities as described under the caption "Use of
Proceeds") have been duly authorized by all necessary corporate action
by the Company and will not conflict with or constitute a breach of, or
a default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its consolidated
subsidiaries pursuant to the terms of, any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Company or any of its consolidated subsidiaries is a party
or by which the Company or any of them may be bound, or to which any
property or assets of the Company or any of its consolidated
subsidiaries is subject; nor will such action result in a violation of
the provisions of the charter or by-laws of the Company or any of its
consolidated subsidiaries or any applicable law, rule, regulation,
judgment, order or administrative or court decree; nor will such action
conflict with or have an adverse effect on any of the certificates,
authorities, licenses or permits of the Company or any of its
consolidated subsidiaries that enable them to carry on the business and
operations now operated by them and which are material to the business
of the Company and its consolidated subsidiaries considered as one
enterprise. 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
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or repayment of all or a portion of such indebtedness by the Company or
any of its subsidiaries.
(xii) No labor dispute with the employees of the Company or
any of its consolidated subsidiaries exists or, to the knowledge of the
Company, is imminent which would materially adversely affect the
business operations of the Company and its consolidated subsidiaries
considered as one enterprise.
(xiii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or affecting
the Company or any of its consolidated subsidiaries which is required
to be disclosed in or incorporated by reference into the Registration
Statement or, except, in the case of (A) and (B) below, as disclosed in
the Prospectus, which might (A) result in any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its consolidated
subsidiaries considered as one enterprise, (B) materially and adversely
affect the properties or assets of the Company, and its consolidated
subsidiaries, considered as one enterprise, or (C) materially and
adversely affect the consummation of the transactions contemplated by
this Underwriting Agreement, the applicable Terms Agreement or the
Indenture; all pending legal or governmental proceedings to which the
Company or any of its consolidated subsidiaries is a party or of which
any of their respective property is the subject which are not described
in or incorporated by reference into the Registration Statement and the
Prospectus, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material to the Company
and its consolidated subsidiaries considered as one enterprise; and
there are no contracts or documents of the Company or any of its
consolidated subsidiaries which are required to be filed or
incorporated by reference as exhibits to the Registration Statement by
the 1933 Act or by the 1933 Act Regulations which have not been so
filed or incorporated by reference.
(xiv) The Company and its consolidated subsidiaries own or
possess, or can acquire on reasonable terms, the 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 and trade names currently employed by them in connection with the
business now operated by them and neither the Company nor any of its
consolidated subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the
foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
consolidated subsidiaries considered as one enterprise.
(xv) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or
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foreign, is necessary or required for the due authorization, execution
and delivery by the Company of this Underwriting Agreement or the
applicable Terms Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus, this Underwriting
Agreement, such Terms Agreement or the Indenture, except as may be
required under the 1933 Act or 1933 Act Regulations, the 1934 Act or
1934 Act Regulations, the 1939 Act, the 1939 Act Regulations or State
securities laws.
(xvi) All taxes and fees required to be paid with respect to
the execution of the Indenture and the issuance of the Underwritten
Securities have been paid.
(xvii) The Company and its consolidated subsidiaries possess
such certificates, authorities, licenses or permits issued by the
appropriate local, state, federal or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, and,
except as disclosed in the Registration Statement or the documents
incorporated by reference therein, none of the Company or any of its
consolidated subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority, license or permit which, singly or in the aggregate, if the
subject of any unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company
and its consolidated subsidiaries considered as one enterprise.
(xviii) The Company and its consolidated subsidiaries have
good and marketable title to all real property owned by the Company and
its consolidated subsidiaries and good title to all other properties
owned by them that are material to the business of the Company and its
consolidated subsidiaries considered as one enterprise, 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
consolidated subsidiaries. All of the leases and subleases material to
the business of the Company and its consolidated subsidiaries
considered as one enterprise, and under which the Company or any of its
consolidated subsidiaries holds properties described in the Prospectus,
are in full force and effect, and neither the Company nor any of its
consolidated 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 consolidated subsidiaries under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such consolidated subsidiary of the continued
possession of the leased or subleased premises under any such lease or
sublease.
(xix) The Underwritten 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
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and regulations of the Commodity Futures Trading Commission under the
Commodity Exchange Act (the "Commodity Exchange Act Regulations").
(xx) The Company is not, and upon the issuance and sale of the
Underwritten 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").
(b) 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 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 the Underwriters; Closing.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations, warranties and
agreements herein contained and shall be subject to the terms and conditions
herein set forth.
(b) Payment of the purchase price for the Underwritten Securities shall
be made at the office of Merrill Lynch & Co., 5500 Sears Tower, Chicago,
Illinois 60606, and delivery of the certificates for the Underwritten Securities
shall be made against payment therefor at the office of Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Merrill Lynch World Headquarters, North Tower,
World Financial Center, New York, New York 10281-1209, or (in either case) at
such other place or places as shall be agreed upon by Merrill Lynch and the
Company, at 10:00 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern 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 ten 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").
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
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 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 Securities to be purchased by
any Underwriter whose funds have not been received by the Closing Time but such
payment shall not relieve such Underwriter from its obligations hereunder.
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(c) Certificates for the Underwritten Securities 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. The
certificates for the Underwritten Securities 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 last business day prior to Closing Time.
SECTION 3. Covenants. The Company covenants with Merrill Lynch
and with each Underwriter participating in the offering of Underwritten
Securities as follows:
(a) 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) of the Underwriters 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 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) 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 reasonably object.
(c) The Company has furnished or will deliver to Merrill Lynch and
counsel for the Underwriters, without charge, as many 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) as
Merrill Lynch has requested or shall reasonably request, and as many signed
copies of all consents and certificates of experts as Merrill Lynch has
requested or shall reasonably request, 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. The
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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) 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) 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 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 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) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Underwritten 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 Securities have been so qualified, the Company will
file such statements and reports
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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) 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 11(a) of the 1933
Act.
(h) The Company will use the net proceeds received by it from the sale
of the Underwritten Securities in the manner specified in the Prospectus under
"Use of Proceeds".
(i) The Company will use its best efforts to effect the listing of the
Underwritten Securities and any related Underlying Securities, prior to the
Closing Time, on any national securities exchange or quotation system if and as
specified in the applicable Terms Agreement.
(j) Between the date of the applicable Terms Agreement and the Closing
Time or such other date specified in such Terms Agreement, the Company and its
subsidiaries will not, without the prior written consent of Merrill Lynch,
directly or indirectly, issue, sell, offer or contract to sell, grant any option
for the sale of, or otherwise dispose of, any debt securities, provided,
however, that this Section 3(j) shall not be applicable to borrowings under (i)
the Company's revolving credit agreement with Telephone and Data Systems, Inc.
in effect on the date of this Underwriting Agreement (the "Current Revolver") or
(ii) any unsecured revolving credit agreement between the Company and one or
more banks, or any successor thereto, that replaces the Current Revolver.
(k) 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. The Company will pay all expenses
incident to the performance of its obligations under this Underwriting Agreement
and the applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the printing of this Underwriting Agreement, any Terms Agreement, any agreement
among Underwriters and the Indenture, (iii) the preparation, issuance and
delivery to Merrill Lynch of the certificates for the Underwritten Securities,
including any transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Underwritten Securities to the Underwriters,
(iv) the fees and disbursements of the Company's counsel and accountants, (v)
the qualification of the Underwritten Securities under securities laws in
accordance with the provisions of Section 3(f), including filing fees and the
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky surveys, (vi) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of the preliminary
prospectuses, of any Term Sheet and of the Prospectus and any amendments or
supplements thereto, (vii) the printing and
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delivery to the Underwriters of copies of the Blue Sky surveys, (viii) the fees
and expenses of the Trustee and any Depositary, including the fees and
disbursements of their respective counsel, (ix) any fees payable in connection
with the rating of the Underwritten Securities, (x) the fees and expenses
incurred with respect to any listing of the Underwritten Securities, and (xi)
the filing fees incident to the review, if any, by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Securities.
If the applicable Terms Agreement is terminated by Merrill Lynch in
accordance with the provisions of Section 5 (other than Section 5(i)) 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 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) 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 instituted 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 for the Underwriters. A prospectus containing
information relating to the description of the Underwritten 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) At Closing Time, Merrill Lynch shall have received:
(1) The opinion, dated as of Closing Time, of Sidley & Austin,
counsel for the Company, in form and substance reasonably satisfactory
to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
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<PAGE>
(ii) The Company 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.
(iii) To the knowledge of such counsel, the Company
is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which
it owns or leases substantial properties or in which the
conduct of its business requires such qualification, except
where the failure to be so qualified or in good standing could
not reasonably be expected to have a material adverse effect
on the Company and its consolidated subsidiaries considered as
one enterprise.
(iv) Each of United States Cellular Operating Company
("USCOC") and United States Cellular Investment Company
("USCIC" and, together with USCOC, the "Direct Subsidiaries")
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware and, to the knowledge of such counsel, is duly
qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which it owns or
leases substantial properties or in which the conduct of its
business requires such qualification, except where the failure
to be so qualified or in good standing could not reasonably be
expected to have a material adverse effect on the Company and
its consolidated subsidiaries considered as one enterprise;
all of the issued and outstanding capital stock of each of the
Direct Subsidiaries has been duly authorized and validly
issued and is fully paid and non-assessable and all of such
capital stock is owned of record by the Company free and
clear, to such counsel's knowledge, of any security interest,
mortgage, pledge, lien, encumbrance or claim.
(v) The Underwritten Securities have been duly
authorized by the requisite corporate action on the part of
the Company for issuance and sale pursuant to this
Underwriting Agreement and the applicable Terms Agreement, and
the Underwritten Securities, when executed and authenticated
in accordance with the terms of the Indenture and delivered to
and paid for by the Underwriters as provided in such Terms
Agreement, will be valid and binding obligations of the
Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be
limited by (1) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (2) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); and the
Underwritten Securities and the Indenture conform as to legal
matters in all material respects to the descriptions thereof
in the Prospectus and are in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.
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<PAGE>
(vi) The Indenture has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement enforceable against the Company in accordance with
its terms, except to the extent that enforcement thereof may
be limited by (1) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (2) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
(vii) The Company has authorized capital stock as set
forth in or incorporated by reference into the Registration
Statement; and to the knowledge of such counsel, all of the
issued and outstanding shares of capital stock of the Company
have been duly and validly authorized and issued and are fully
paid and non-assessable.
(viii) This Underwriting Agreement and the applicable
Terms Agreement have each been duly authorized, executed and
delivered by the Company.
(ix) The Registration Statement (including any Rule
462(b) Registration Statement) has been declared effective
under the 1933 Act. Any required filing of the Prospectus
pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b). To the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement (or such Rule
462(b) Registration Statement) has been issued under the 1933
Act and no proceedings for that purpose have been initiated or
are pending or threatened by the Commission.
(x) The Registration Statement (including any Rule
462(b) Registration Statement) and the Prospectus, excluding
the documents incorporated by reference therein, and each
amendment or supplement to the Registration Statement
(including any Rule 462(b) Registration Statement) and
Prospectus, excluding the documents incorporated by reference
therein, as of their respective effective or issue dates
(other than the financial statements, including notes thereto,
financial data and supporting schedules included therein or
omitted therefrom and the Trustee's Statement of Eligibility
on Form T-1 (the "Form T-1"), as to which no opinion need be
rendered) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
(xi) The documents incorporated by reference into the
Prospectus (other than the financial statements, including
notes thereto, financial data and supporting schedules therein
or omitted therefrom, as to which no opinion need be
rendered), when they were filed with the Commission, complied
as to form in all material respects with the applicable
requirements of the 1934 Act and the 1934 Act Regulations.
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<PAGE>
(xii) The information in the Prospectus under
"Description of Debt Securities," if any, or any caption
purporting to describe any such Debt Securities and in the
Registration Statement under Item 15, to the extent that it
constitutes matters of law, summaries of legal matters or the
Company's charter or bylaws, or legal conclusions, has been
reviewed by such counsel and is correct in all material
respects.
(xiii) To such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened which
are required to be disclosed in the Registration Statement or
the Prospectus other than those disclosed therein or
incorporated by reference therein.
(xiv) To such counsel's knowledge, (1) there are no
contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described in the
Prospectus or the Registration Statement or to be filed as
exhibits thereto which are not described or filed as required
and (2) such descriptions are correct in all material
respects.
(xv) 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 due authorization,
execution or delivery by the Company of the Underwriting
Agreement or the applicable Terms Agreement or for the
performance by the Company of the transactions contemplated
under the Prospectus, the Underwriting Agreement, such Terms
Agreement or the Indenture, other than under the 1933 Act, the
1933 Act Regulations, the 1934 Act, the 1934 Act Regulations,
the 1939 Act and the 1939 Act Regulations, which have already
been made, obtained or rendered, as applicable, or State
securities laws.
(xvi) The execution and delivery of this Underwriting
Agreement, the applicable Terms Agreement and the Indenture,
the issuance of the Underwritten Securities, the compliance by
the Company with all of the provisions of the Underwritten
Securities, the Indenture, this Underwriting Agreement and the
applicable Terms Agreement and the consummation of the
transactions contemplated herein, therein and in the
Registration Statement and the Prospectus (including the
issuance and sale of the Underwritten Securities as described
under the caption "Use of Proceeds") do not and will not
constitute a breach of, or default or Repayment Event under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or, to
such counsel's knowledge, any of the Company's consolidated
subsidiaries pursuant to the terms of, (1) the Certificate of
Incorporation or by-laws of the Company, (2) any contract,
indenture, mortgage, loan agreement, note, lease or other
agreement or instrument of which such counsel has knowledge,
to which the Company or any of the
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Company's consolidated subsidiaries is a party or by which the
Company or any of the Company's consolidated subsidiaries may
be bound, or to which any property or assets of the Company or
any of the Company's consolidated subsidiaries is subject, or
(3) to such counsel's knowledge, any currently applicable law,
rule, regulation, judgment, order or administrative or court
decree.
(xvii) The Indenture has been duly qualified under
the 1939 Act.
(xviii) The Underwritten 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").
(xix) The Company is not, and upon the issuance and
sale of the Underwritten 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").
(xx) To such counsel's knowledge, there are no
statutes or regulations that are required to be described in
the Prospectus that are not described as required.
(xxi) To such counsel's knowledge, neither the
Company nor any of the Direct Subsidiaries is in violation of
its charter or by-laws and no default by the Company or any of
its consolidated subsidiaries exists in the due performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that
is described or referred to in the Registration Statement or
the Prospectus or filed or incorporated by reference as an
exhibit to the Registration Statement.
Such opinion of Sidley & Austin shall additionally state that nothing
has come to their attention that has caused them to believe that the
Registration Statement (including any Rule 426(b) Registration Statement) or any
post-effective amendment thereto (except for financial statements, including
notes thereto, and supporting schedules and other financial data included
therein or omitted therefrom and for the Form T-1, as to which no belief need be
expressed), at the time the Registration Statement (including any Rule 462(b)
Registration Statement) or any post-effective amendment thereto (including the
filing of the Company's Annual Report on Form 10-K with the Commission) became
effective or at the date of the applicable Terms Agreement, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus or any amendment or supplement thereto (except for financial
statements, including notes thereto, and supporting
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schedules and other financial data included therein or omitted therefrom, as to
which no belief need be expressed), at the time the Prospectus was issued, at
the time any such amended or supplemented prospectus was issued or at the
Closing Time, included or includes an untrue statement of a material fact or
omitted or omits 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. Such counsel may also state that they have relied as to
materiality, to the extent they deem appropriate in accordance with their
professional responsibilities, upon the judgment of officers and representatives
of the Company.
Such opinion shall be limited to the laws of the State of New York, the
State of Illinois, the General Corporation Law of the State of Delaware and the
federal law of the United States (other than the Communications Act of 1934, as
amended (the "Communications Act"), and the rules and regulations thereunder).
In rendering such opinion, such counsel may rely, as to matters governed by the
Communications Act and the rules and regulations thereunder upon the opinion of
Koteen and Naftalin delivered to the Underwriters pursuant to subsection (b)(2)
of this Section. 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.
(2) The opinion, dated as of Closing Time, of Koteen and
Naftalin, special counsel to the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, to the effect
that:
(i) No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree
of, the Federal Communications Commission (the "FCC"), is
necessary or required for the due authorization, execution or
delivery by the Company of this Underwriting Agreement or the
applicable Terms Agreement or for the performance by the
Company of the transactions contemplated under the Prospectus,
this Underwriting Agreement, such Terms Agreement or the
Indenture.
(ii) The execution and delivery of this Underwriting
Agreement, the applicable Terms Agreement and the Indenture,
the issuance of the Underwritten Securities, the compliance by
the Company with all of the provisions of the Underwritten
Securities, the Indenture, this Underwriting Agreement and the
applicable Terms Agreement and the consummation of the
transactions contemplated herein, therein and in the
Registration Statement and the Prospectus (including the
issuance and sale of the Underwritten Securities as described
under the caption "Use of Proceeds") do not and will not, to
such counsel's knowledge, conflict with or result in any
violation of, or the creation of any lien, charge or
encumbrance upon, the property or assets of the Company or, to
such counsel's knowledge, its consolidated subsidiaries, under
the Communications Act or any rule, regulation, judgment,
order or administrative or court decree issued, enacted or
promulgated thereunder; neither will any such action conflict
with or have a material adverse effect on any of the
certificates, authorities, licenses or permits, if any, issued
or to
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be issued by the FCC to the Company or, to such counsel's
knowledge, any of the Company's consolidated subsidiaries that
enable them to carry on the business and operations now
operated by them and which are material to the business of the
Company and its consolidated subsidiaries considered as one
enterprise.
(iii) The information in the Registration Statement
(or any post-effective amendment thereto) or the Prospectus
purporting to describe FCC regulatory matters or the
Communications Act, to the extent that it constitutes matters
of law, summaries of legal matters or legal conclusions, has
been reviewed by such counsel and is correct in all material
respects.
Such opinion of Koteen and Naftalin shall additionally state that
nothing has come to their attention that has caused them to believe that the
descriptions of FCC regulatory matters and the Communications Act contained in
the Registration Statement (including any Rule 426(b) Registration Statement) or
any post-effective amendment thereto (except for financial statements, including
notes thereto, and supporting schedules included therein or omitted therefrom,
as to which no belief need be expressed), at the time the Registration Statement
(including any Rule 462(b) Registration Statement) or any post-effective
amendment thereto (including the filing of the Company's Annual Report on Form
10-K with the Commission) became effective or at the date of the applicable
Terms Agreement, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the descriptions of FCC regulatory
matters and the Communications Act contained in the Prospectus or any amendment
or supplement thereto (except for financial statements including notes thereto,
and supporting schedules included therein or omitted therefrom, as to which no
belief need be expressed), at the time the Prospectus was issued, at the time
any such amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
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.
(3) The opinion, dated as of Closing Time, of Mayer, Brown &
Platt, 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 (i) (insofar as it relates to the existence
and good standing of the Company), (ii), (v), (vi), (viii), (ix), (x),
(xii) (solely as to the information in the Prospectus under
"Description of Debt Securities" or any caption purporting to describe
any such Debt Securities), (xvii) and the penultimate paragraph of
subsection (b)(1) of this Section. 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 New York, the State of Illinois, the
federal law of the United States and the General Corporation Law of the
State of Delaware, 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.
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(c) 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 Chairman, President or Vice
President-Finance of the Company and of the Controller or Treasurer of the
Company, dated as of Closing Time, to the effect that (i) there has been no such
material adverse change with respect to the Company and its subsidiaries
considered as one enterprise, (ii) the representations and warranties in Section
1(a) are true and correct with the same force and effect as though expressly
made at and as of 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 Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been received by the Company or, to the
Company's knowledge, issued and, to the Company's knowledge, no proceedings for
that purpose have been initiated or threatened by the Commission.
(d) At the time of the execution of the applicable Terms Agreement,
Merrill Lynch shall have received from Arthur Andersen 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.
(e) At Closing Time, Merrill Lynch shall have received from Arthur
Andersen LLP a letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (d)
of this Section, except that the specified date referred to shall be a date not
more than three business days prior to Closing Time.
(f) At Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities, as contemplated herein, and related proceedings, 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 Securities shall be reasonably satisfactory in form and substance
to Merrill Lynch and counsel for the Underwriters.
(g) At Closing Time, the Underwritten 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 (a "NRSRO"), if and as specified in the applicable Terms Agreement.
(h) At Closing Time, the Underwritten Securities shall have been
approved for listing, subject only to official notice of issuance, if and as
specified in the applicable Terms Agreement.
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(i) If the Registration Statement or an offering of Underwritten
Securities is required to be and has been filed with the NASD for review, the
NASD shall not have raised any objection that remains unresolved at Closing Time
with respect to the fairness and reasonableness of the underwriting terms and
arrangements.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Underwriting Agreement and
the applicable Terms Agreement may be terminated by Merrill Lynch by notice to
the Company at any time at or prior to Closing Time 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) 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 part of the
Registration Statement, 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
contained 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 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, subject to Section 6(c) hereof, 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
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<PAGE>
alleged untrue statement or omission, to the extent that any such
expense is not paid under(i) or (ii) above;
provided, however, that (A) this indemnity agreement does 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) and (B) this indemnity agreement, with respect to any preliminary
prospectus, does not apply to any loss, liability, claim, damage or expense if a
copy of the Prospectus (as then amended or supplemented, if the Company shall
have furnished any amendments or supplements thereto to an Underwriter) was not
sent or given by or on behalf of such Underwriter to the person asserting any
such loss, liability, claim, damage or expense if such is required by law at or
prior to the written confirmation of the sale of such Underwritten Securities to
such person and if the Prospectus (as so amended or supplemented) would have, as
determined by a court of competent jurisdiction, cured the defect giving rise to
such loss, liability, claim, damage or expense.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of the Company's directors, each of the Company's 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) 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 case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, provided, however, that if the
defendants (including any impleaded defendants) in any such action
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<PAGE>
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel. Upon receipt
of notice from the indemnifying party to such indemnified party of its election
so to assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 6 for any legal fees or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not,
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, be liable for the fees and expenses of more than one separate
counsel (plus any local counsel) representing the indemnified parties under
Section 6(a) who are parties to such action); (ii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action; or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii). 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) If at any time an indemnified party shall have requested in writing
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, 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 after the later of (A) 45
days after such indemnified party has mailed (by registered or certified mail,
postage prepaid) the aforesaid request to each of the Notice Recipients (as
defined below) and (B) if the indemnifying party has not given written notice to
such indemnified party of the receipt by such indemnifying party of the
aforesaid request, 30 days after such indemnified party has mailed (by
registered or certified mail, postage prepaid) a second such request to each of
the Notice Recipients, provided that such second request is not mailed prior to
the 46th day after the request referred to in subclause (i)(A) above is mailed,
(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.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party
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shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, an indemnifying party shall not be liable for
any settlement of the nature contemplated by Section 6(a)(ii) effected without
its consent if such indemnifying party (i) reimburses such indemnified party in
accordance with such request to the extent it considers such request to be
reasonable and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement. The Notice Recipients are the Chairman, the President,
the Chief Financial Officer and the Secretary of the Company and the Chief
Financial Officer and the Secretary of Telephone and Data Systems, Inc. ("TDS").
Requests mailed pursuant to this Section 6(d) to (i) the Chairman, the President
and the Chief Financial Officer of the Company shall be mailed to them at United
States Cellular Corporation, 8410 West Bryn Mawr, Suite 700, Chicago, Illinois
60631-3486, (ii) the Secretary of the Company shall be mailed to Stephen P.
Fitzell, Sidley & Austin, One First National Plaza, Suite 4200, Chicago,
Illinois 60603, (iii) the Chief Financial Officer of TDS shall be mailed to him
at Telephone and Data Systems, Inc., 30 North LaSalle Street, Suite 4000,
Chicago, Illinois 60602 and (iv) the Secretary of TDS shall be mailed to Michael
G. Hron, Sidley & Austin, One First National Plaza, Suite 4200, Chicago,
Illinois 60603.
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 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 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 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 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 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
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<PAGE>
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 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 aggregate principal amount of Underwritten 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 contained in
certificates of officers of the Company or any of its subsidiaries 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 Securities.
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<PAGE>
SECTION 9. Termination of Agreement.
(a) 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) Merrill Lynch may terminate the applicable Terms Agreement, by
notice to the Company, at any time at or prior to the Closing Time, 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
Securities include Debt Securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, in 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 is such as to make it, in the reasonable judgment of Merrill
Lynch, impracticable to market the Underwritten Securities or to enforce
contracts for the sale of the Underwritten Securities, or (iii) trading in any
securities of the Company has been suspended or materially limited by the
Commission or the American Stock Exchange, 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 materially 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
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, or (v) there has occurred, since the time
of execution of such Terms Agreement, a downgrading in, or withdrawal of, the
rating assigned to the Underwritten Securities or any of the Company's other
debt securities by a NRSRO, or any such NRSRO shall have publicly announced that
it has under surveillance or review with possible negative implications its
rating of the Underwritten Securities or any of the Company's other debt
securities.
(c) 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 to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then Merrill Lynch and the Company shall
each have the right, within 24 hours thereafter, to make
-27-
<PAGE>
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters reasonably acceptable to Merrill Lynch, to purchase all, but not
less than all, of the Defaulted 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 Securities does not
exceed 10% of the aggregate principal amount of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the non-defaulting
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
non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of Underwritten Securities to be purchased
on such date pursuant to such Terms Agreement, such Terms Agreement shall
terminate without liability on the part of any non-defaulting 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 a termination
of the applicable Terms Agreement, either Merrill Lynch or the Company shall
have the right to postpone the Closing Time 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. Except as otherwise provided in Section 6(d), 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 Merrill Lynch & Co., 5500 Sears Tower, Chicago, Illinois 60606,
attention of Steve Moss; notices to the Company shall be directed to it at
United States Cellular Corporation, 8410 West Bryn Mawr, Suite 700, Chicago,
Illinois 60631-3486; Attention: Senior Vice President-Finance and Treasurer.
SECTION 12. Parties. This Underwriting Agreement and the applicable
Terms Agreement shall each inure to the benefit of and be binding upon Merrill
Lynch, the Company, 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
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<PAGE>
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 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.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and
Section headings herein are for convenience only and shall not affect the
construction hereof.
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<PAGE>
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,
UNITED STATES CELLULAR CORPORATION
By /s/H. Donald Nelson
---------------------------------------------
Title: President and Chief Financial Officer
CONFIRMED AND ACCEPTED, as of the date first above written:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By /s/Michael G. O'Grady
- -------------------------------------
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Exhibit A
UNITED STATES CELLULAR CORPORATION
(a Delaware corporation)
Debt Securities
TERMS AGREEMENT
To: United States Cellular Corporation
8410 West Bryn Mawr Avenue
Suite 700
Chicago, IL 60631-3486
Ladies and Gentlemen:
We understand that United States Cellular Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell $ aggregate principal
amount of its senior debt securities (the "Debt Securities"). Subject to the
terms and conditions set forth or incorporated by reference herein, we [the
underwriters named below (the "Underwriters")] offer to purchase [, severally
and not jointly,] the principal amount of Debt Securities [opposite their names
set forth below] at the purchase price set forth below.
Principal Amount
Underwriter of Debt Securities
----------- ------------------
---------------
Total $
===============
The Debt Securities shall have the following terms:
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
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Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per security: %
of the principal amount, plus accrued interest [amortized original
issue discount], if any, from
-----------------.
Purchase price per security: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled "UNITED STATES CELLULAR CORPORATION--Debt
Securities--Underwriting Agreement" are hereby incorporated by reference in
their entirety herein and shall be deemed to be a part of this Terms Agreement
to the same extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein defined.
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By________________________________
Authorized Signatory
[Acting on behalf of itself
and the other named Underwriters.]
Accepted:
UNITED STATES CELLULAR CORPORATION
By _____________________________________
Name:
Title:
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<PAGE>
- --------------------------------------------------------------------------------
United States Cellular Corporation, Issuer
AND
The First National Bank of Chicago, Trustee
Indenture
Dated as of July 31, 1997
------------
- --------------------------------------------------------------------------------
<PAGE>
CROSS REFERENCE SHEET
---------------
Between
Provisions of Trust Indenture Act of 1939 and Indenture to be
dated as of July 31, 1997 between United States Cellular Corporation and The
First National Bank of Chicago, Trustee:
Section of the Act Section of Indenture
- ------------------ ---------------------
310(a)(1) and (2)............................................................6.9
310(a)(3) and (4)...................................................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)....................................................................4.4(a)
313(b)(1)...........................................................Inapplicable
313(b)(2).................................................................4.4(b)
313(c)....................................................................4.4(c)
313(d)....................................................................4.4(d)
314(a).......................................................................4.3
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.
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<PAGE>
TABLE OF CONTENTS
-----------
PARTIES.......................................................................1
RECITALS
Authorization of Indenture...........................................1
Compliance with Legal Requirements...................................1
Purpose of and Consideration for Indenture...........................1
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined..............................1
"Authenticating Agent".............................2
"Authorized Newspaper".............................2
"Board of Directors"...............................2
"Board Resolution".................................2
"Business Day".....................................2
"Capital Stock"....................................2
"Capitalization"...................................2
"Capitalized Rent".................................3
"Commission".......................................3
"Consolidated Capitalization"......................3
"Corporate Trust Office"...........................3
"Coupon" ..........................................3
"covenant defeasance"..............................3
"Debt" ..........................................3
"Depositary".......................................3
"Dollar" ..........................................4
"ECU" ..........................................4
"Event of Default".................................4
"Exchange Act".....................................4
"Foreign Currency".................................4
"Funded Debt"......................................4
"Government Obligations"...........................4
"Holder","Holder of Securities",
"Securityholder"..............................5
"Indenture"........................................5
"Interest".........................................5
"Issuer" ..........................................5
"Issuer Order".....................................5
"Judgment Currency"................................5
"Lien" ..........................................5
"Officers' Certificate"............................5
"Opinion of Counsel"...............................5
"Original issue date"..............................6
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"Original Issue Discount Security".................6
"Outstanding"......................................6
"Periodic Offering"................................7
"Person" ..........................................7
"principal"........................................7
"property".........................................7
"Record Date"......................................7
"Registered Global Security".......................7
"Registered Security"..............................7
"Required Currency"................................7
"Responsible Officer"..............................7
"Sale and Leaseback Transaction"...................8
"Secured Debt".....................................8
"Security" " or "Securities".......................8
"Security Register" and "Security Registrar".......8
"Subsidiary".......................................8
"subsidiary".......................................8
"Tax Consolidated Subsidiary"......................9
"Trust Indenture Act Of 1939"......................9
"Trustee"..........................................9
"Unregistered Security"............................9
"Yield to Maturity"................................9
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally..................................................9
SECTION 2.2 Form of Trustee's Certificate of
Authentication...............................................10
SECTION 2.3 Amount Unlimited; Issuable in Series............................10
SECTION 2.4 Authentication and Delivery of Securities.......................13
SECTION 2.5 Execution of Securities.........................................17
SECTION 2.6 Certificate of Authentication...................................17
SECTION 2.7 Denomination and Date of Securities,
Payments of Interest.........................................18
SECTION 2.8 Registration, Transfer and Exchange.............................19
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities............................................23
SECTION 2.10 Cancellation of Securities; Disposition
Thereof......................................................24
SECTION 2.11 Temporary Securities...........................................25
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest...............................26
SECTION 3.2 Offices for Payments, etc.......................................26
SECTION 3.3 Appointment to Fill a Vacancy in Office
of Trustee...................................................28
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SECTION 3.4 Paying Agents...................................................28
SECTION 3.5 Written Statement to Trustee....................................29
SECTION 3.6 Limitation on Secured Debt......................................29
SECTION 3.7 Limitation on Sale and Leaseback................................31
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Names and
Addresses of Securityholders.................................33
SECTION 4.2 Preservation and Disclosure of
Securityholders Lists........................................34
SECTION 4.3 Reports by the Issuer...........................................35
SECTION 4.4 Reports by the Trustee..........................................36
SECTION 4.5 Publication of Certain Notices..................................38
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration
of Maturity; Waiver of Default...............................38
SECTION 5.2 Collection of Indebtedness by Trustee;
Trustee May Prove Debt.......................................42
SECTION 5.3 Application of Proceeds.........................................45
SECTION 5.4 Suits for Enforcement...........................................46
SECTION 5.5 Restoration of Rights on Abandonment
of Proceedings...............................................46
SECTION 5.6 Limitations on Suits by Securityholders.........................46
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits......................................47
SECTION 5.8 Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default............................47
SECTION 5.9 Control by Holders of Securities................................48
SECTION 5.10 Waiver of Past Defaults........................................49
SECTION 5.11 Trustee to Give Notice of Default,
But May Withhold in Certain Circumstances....................49
SECTION 5.12 Right of Court to Require Filing of
Undertaking to Pay Costs.....................................50
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the
Trustee; During Default; Prior to Default....................50
SECTION 6.2 Certain Rights of the Trustee...................................52
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SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof..............................53
SECTION 6.4 Trustee and Agents May Hold Securities
or Coupons; Collections, etc.................................53
SECTION 6.5 Moneys Held by Trustee..........................................54
SECTION 6.6 Compensation and Indemnification of
Trustee and Its Prior Claim..................................54
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc.............................................54
SECTION 6.8 Qualification of Trustee; Conflicting
Interests....................................................55
SECTION 6.9 Persons Eligible for Appointment as Trustee.....................55
SECTION 6.10 Resignation and Removal; Appointment of
Successor Trustee............................................55
SECTION 6.11 Acceptance of Appointment by Successor
Trustee......................................................57
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business of Trustee............................58
SECTION 6.13 Preferential Collection of Claims
Against the Issuer...........................................59
SECTION 6.14 Appointment of Authenticating Agent............................63
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by
Securityholders..............................................65
SECTION 7.2 Proof of Execution of Instruments and
of Holding of Securities.....................................65
SECTION 7.3 Holders to be Treated as Owners.................................66
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding..................................................66
SECTION 7.5 Right of Revocation of Action Taken.............................67
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders..............................................68
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders..............................................70
SECTION 8.3 Effect of Supplemental Indenture................................71
SECTION 8.4 Documents to Be Given to Trustee................................72
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures......................................72
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ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of Issuer Not to Merge,
Consolidate, Sell or Convey Property
Except Under Certain Conditions..............................72
SECTION 9.2 Securities to be Secured in Certain
Events.......................................................73
SECTION 9.3 Successor Person Substituted for Issuer.........................74
SECTION 9.4 Officers' Certificate and Opinion of
Counsel Delivered to Trustee.................................74
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture........................75
SECTION 10.2 Application by Trustee of Funds
Deposited for Payment of Securities..........................79
SECTION 10.3 Repayment of Moneys Held by Paying
Agent........................................................80
SECTION 10.4 Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two Years.........................80
SECTION 10.5 Indemnity for Government Obligations...........................80
SECTION 10.6. Reinstatement.................................................81
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability.........................................81
SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and Holders of
Securities and Coupons.......................................81
SECTION 11.3 Successors and Assigns of Issuer Bound
by Indenture.................................................82
SECTION 11.4 Notices and Demands on Issuer, Trustee
and Holders of Securities and Coupons........................82
SECTION 11.5 Officers' Certificates and Opinions
of Counsel; Statements to be Contained
Therein......................................................83
SECTION 11.6 Payments Due on Saturdays, Sundays
and Holidays.................................................84
SECTION 11.7 Conflict of Any Provision of Indenture
with Trust Indenture Act of 1939.............................84
SECTION 11.8 Illinois Law to Govern.........................................84
SECTION 11.9 Counterparts...................................................85
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SECTION 11.10 Effect of Headings............................................85
SECTION 11.11 Securities in a Foreign Currency or
in ECU.......................................................85
SECTION 11.12 Judgment Currency.............................................86
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article.......................................86
SECTION 12.2 Notice of Redemption; Partial
Redemptions..................................................87
SECTION 12.3 Payment of Securities Called for
Redemption...................................................89
SECTION 12.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption.....................90
SECTION 12.5 Mandatory and Optional Sinking Funds...........................90
TESTIMONIUM..................................................................94
SIGNATURES...................................................................94
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THIS INDENTURE dated as of July 31, 1997 between United States
Cellular Corporation, a Delaware corporation (the Issuer"), and The First
National Bank of Chicago, 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 ONE
DEFINITIONS
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SECTION 1.1 Certain Terms Defined. 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 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (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
<PAGE>
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, 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
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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 Trust Indenture Act of 1939,
then the body performing such duties on such date.
"Consolidated Capitalization" means the Capitalization of the Issuer
and its Subsidiaries 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 One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126, Attention: Corporate Trust Services.
"Coupon" means any interest coupon appertaining to a
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 and all such obligations of any other Person for borrowed
money guaranteed by such Person.
"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
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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 of 1933, as
amended) 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.
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"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 any 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 Six) United
States Cellular Corporation, a Delaware corporation and, subject to Article
Nine, 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 11.12.
"Lien" means any mortgage, pledge, security interest, lien, charge or
other encumbrance.
"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.
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"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 10, 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
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determination upon 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, 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 2.4, 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
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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.
"Sale and Leaseback Transaction" means any arrangement with
any Person other than a Tax Consolidated Subsidiary providing for the leasing
(as lessee) by the Issuer of any property (except for temporary leases for a
term, including any renewal thereof, of not more than three years (provided that
any such temporary lease may be for a term of up to five years if (a) the Board
of Directors reasonably finds such term to be in the best interest of the Issuer
and (b) the primary purpose of the transaction of which such lease is a part is
not to provide funds to or financing for the Issuer)), which property has been
or is to be sold or transferred by the Issuer (i) to any subsidiary of the
Issuer in contemplation of or in connection with such arrangement or (ii) to
such other Person.
"Secured Debt" means Debt of the Issuer secured by any Lien on
property (including Capital Stock or indebtedness of subsidiaries of the Issuer)
owned by the Issuer.
"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.
"Specified European Nation" means the United Kingdom, Ireland,
France, Spain, Portugal, Belgium, the Netherlands, Luxembourg, Switzerland,
Italy, Austria, Germany, Denmark, Norway, Sweden, Finland, Iceland, the Czeck
Republic, Hungary, Poland, Greece, Turkey and Israel.
"Subsidiary" means 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
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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.
"Tax Consolidated Subsidiary" means a subsidiary of the Issuer
with which, at the time a Sale and Leaseback Transaction is entered into by the
Issuer, the Issuer would be entitled to file a consolidated federal income tax
return.
"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 Six, 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 TWO
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 and 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
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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.
The First National Bank of Chicago, 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.
The First National Bank of Chicago,
as Trustee
By______________________________,
as 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.
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The Securities may be issued in one or more series, and each such
series shall rank pari passu with all other unsecured and unsubordinated debt 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 at which and any terms and
conditions upon which Securities of such series may be so redeemed,
pursuant to any sinking fund or otherwise;
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(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 or interest on the Securities of such
series shall be payable;
(12) if the principal of 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
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;
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(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
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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;
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(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
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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 laws).
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."
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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
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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
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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 each 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 transferee or
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
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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 (if so required by the Issuer or the
Trustee) be 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,
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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 Global 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.
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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.
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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 to
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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 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.
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 owned 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
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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).
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ARTICLE THREE
COVENANTS OF THE ISSUER
-----------------------
SECTION 3.1 Payment of Principal 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 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 registry
books of the Issuer.
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 Payments, 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
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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
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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.
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
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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 notwith standing, 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, the Issuer will not create or incur any Secured
Debt without in any such case effectively providing concurrently with the
creation or incurrence 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 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:
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(a) Liens on property existing at the time of acquisition of
such property by the Issuer, or Liens to secure the payment of all or
any part of the purchase price of property acquired or constructed by
the Issuer (including any improvements to existing property) created at
the time of or within 270 days following the acquisition of such
property by the Issuer, or Liens to secure any Secured Debt incurred by
the Issuer prior to, 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 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
(including property transferred by the Issuer to any subsidiary of the
Issuer in contemplation of or in connection with the creation of such
Lien) or to any property of the Issuer 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 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,
(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 (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 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 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
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(including, without limitation, Liens incurred in connection with
pollution control, industrial revenue, 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) Liens (including judgment liens) arising in connection
with legal proceedings so long as such proceedings are being contested
in good faith and, in the case of judgment liens, 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, the Issuer will not 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:
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(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 (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 a subsidiary of the Issuer in contemplation of or in
connection with such Sale and Leaseback Transaction or involve any
property of the Issuer 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 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;
(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 the property leased pursuant to such Sale and
Leaseback Transaction, so long as
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within 270 days of the effective date of such Sale and Leaseback
Transaction, the Issuer 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 (i) Securities, (ii) other Funded Debt of the
Issuer which ranks prior to or on a parity with the Securities or (iii)
indebtedness of any subsidiary of the Issuer maturing by its terms more
than one year from its date of issuance (notwithstanding that any
portion of such indebtedness is included in current liabilities) or
preferred stock of any subsidiary of the Issuer (other than any such
indebtedness owed to or preferred stock owned by the Issuer or any
subsidiary of the Issuer); 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.
ARTICLE FOUR
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
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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 Securityholders
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 (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 with respect to
their rights under this Indenture or under such 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 of all 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.
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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 shall 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:
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(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 dated 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;
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(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
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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 FIVE
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
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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, and continuance of such default for a period of 30
days; or
(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; or
(d) failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of the
Issuer 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 remedy the same, shall have been given (i) (A) in person to
the Chairman, the President, the Executive Vice President - Finance 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 for
money borrowed by the Issuer (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
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exceeding $30,000,000 or, if greater, 2% 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; provided, however, that it shall not
constitute an Event of Default hereunder as long as the Issuer is
contesting any such default or acceleration in good faith and by
appropriate proceedings; or
(f) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer 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 for any substantial part of the property of the Issuer,
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 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 for any
substantial part of the property of the Issuer, 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
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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 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
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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 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 thereon.
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
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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
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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
of 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 or 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
Securityholders, 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
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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 proceedings 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 Holders 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;
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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 the 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
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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
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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.
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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.
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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 SIX
CONCERNING THE TRUSTEE
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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.
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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 wilful 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.
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None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable grounds for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably 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;
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(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
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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
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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 of 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
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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
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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
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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 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 6.8 and eligible
under the provisions of Section 6.9, without the execution or filing of any
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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 three months prior to a default, as defined in subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and 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 three 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 three
months' period, or an amount equal to the proceeds of any such property
if disposed of, subject, however, to the rights, if any, of the Issuer
and its other creditors in such property or such proceeds.
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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 three months' period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default as defined in subsection (c) of this Section would occur
within three months; or
(D) to receive payment on any claim referred to in 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 three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such 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 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
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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 it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the
beginning of such three-months' period shall be subject to the provisions of
this subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such
three-months' period, it shall be subject to the provisions of this subsection
if and only if the following conditions exist:
(i) the receipt of property or reduction of claim
which would have given rise to the obligation to account, if
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such Trustee had continued as trustee, occurred after the beginning of
such three-months' period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of 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 anytime 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
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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
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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 Authen
ticating 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.
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ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
------------------------------
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
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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
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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 Officers' 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 Officers' 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
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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 EIGHT
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 Nine;
(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
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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
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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 Seven) 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 which 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 of such series or of the Coupons
appertaining to such Securities with respect to such covenant or provision,
shall
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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 provisions 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 supplemental
indenture shall be and be
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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 NINE
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
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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 either (i) a Person
organized and existing under the laws Of the United States, any state thereof or
the District of Columbia or (ii) a Person organized and existing under the laws
of Canada, Japan, Australia, New Zealand, any Specified European Nation or of
any political subdivision of any thereof 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 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, 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
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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 an 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.
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ARTICLE TEN
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 10
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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 2.3. 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 sub paragraph (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 10 pertinent to such continuing obligations); and
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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
insure 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 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)
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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 Nine (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 and
3.7 and Article Nine, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Article, 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
with respect to the 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 insure 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 interest
on all Securities of such series and Coupons appertaining thereto on
each date that such principal or interest is due and
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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
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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,
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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 10 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 10 until such time as the Trustee
or paying agent is permitted to apply all such money or Government Obligations
in accordance with this Article 10; 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 ELEVEN
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
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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 United States Cellular Corporation,
8410 West Bryn Mawr Avenue, Suite 700, Chicago, Illinois 60631- 3486, 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 One First National Plaza, Suite
0216, Chicago, Illinois 60670-0126, Attention: Corporate Trust Services. 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
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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 such 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
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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 Illinois Law to Govern. This Indenture and each
Security and Coupon shall be deemed to be a contract under the laws of the State
of Illinois, and for all purposes shall be construed in accordance with the laws
of such State,
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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 ECU.
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 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
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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 TWELVE
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 which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a series except
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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 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, that 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,
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the notice of redemption shall state the portion of the principal amount 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 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
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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 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
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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 contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
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<PAGE>
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 that 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 and (ii) 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
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(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
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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 Five 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.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and delivered as of July 31, 1997.
UNITED STATES CELLULAR CORPORATION
/s/ Kenneth R. Meyers
By:_____________________________________
Name:Kenneth R. Meyers
Title:Vice President - Finance
and Chief Financial Officer
THE FIRST NATIONAL BANK OF CHICAGO, AS TRUSTEE
/s/ John R. Prendiville
By:_____________________________________
Title: Vice President
[CORPORATE SEAL]
Attest:
/s/ Stephen P. Fitzell
By ______________________
Secretary
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<PAGE>
THIS NOTE MAY BE TRANSFERRED IN WHOLE BUT NOT IN PART BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY SELECTED OR APPROVED BY THE COMPANY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
================================================================================
No. $
UNITED STATES CELLULAR CORPORATION
% Notes due
CUSIP:
United States Cellular Corporation, a Delaware corporation
(herein called the "Company," which term includes any successor corporation
under the Indenture referred to herein), for value received, hereby promises to
pay to:
CEDE & CO.
or registered assigns, the principal sum of
on and to pay interest on such principal sum at the rate of ( %) per annum.
The Company will pay interest from the later of or the most
recent Interest Payment Date (as defined below) to which interest has been paid
or duly provided for, semi-annually on and of each year, beginning
(each an "Interest Payment Date"), until the principal hereof is
otherwise paid or duly provided for. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture (as defined below), be paid to the Holder of this Note (or one or more
predecessor Notes) of record at the close of business on the regular record date
(the "Regular Record Date") for such Interest Payment Date, which shall be the
or (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date by
virtue of his having been such Holder, and may be paid to the Holder of this
Note (or one or more predecessor Notes) of record at the close of business on a
special record date (the "Special Record Date") fixed by the Company for the
payment of such defaulted interest, notice whereof shall be given to Holders not
less than 15 days prior to such Special Record Date, all as more fully provided
in the Indenture (as defined below).
Payment of the principal of this Note and the interest thereon
will be made at the office or agency of the Company in the Borough of Manhattan,
City and State of New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
<PAGE>
UNITED STATES CELLULAR CORPORATION
% Notes due
This Note is one of a duly authorized issue of debt securities
of the Company (herein called the "Securities"), issuable in one or more series,
unlimited in aggregate principal amount except as may be otherwise provided in
respect of the Securities of a particular series, issued and to be issued under
and pursuant to an Indenture dated as of (herein called the "Indenture"),
duly executed and delivered by the Company to The First National Bank of
Chicago, as Trustee (the "Trustee"), and is one of a series limited in
aggregate principal amount to $ and designated as % Notes due
(herein called the "Notes"). Reference is hereby made to the
Indenture for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the Holders of
Securities (including Holders of the Notes).
The Notes are redeemable, in whole or in part, at the option
of the Company at any time on or after at a redemption price equal to
100% of the principal amount of the Notes to be redeemed, plus accrued
interest thereon, if any, to the date of redemption.
Notice of any redemption will be mailed at least 30 days but
not more than 60 days before the redemption date to each Holder of the Notes to
be redeemed.
In case of any partial redemption, selection of the Notes for
redemption will be made by the Trustee on a pro rata basis, by lot or by such
other method as the Trustee in its sole discretion shall deem to be fair and
appropriate, although no Note of $1,000 in principal amount at maturity or less
shall be redeemed in part. If any Note is to be redeemed in part only, the
notice of redemption relating to such Note shall state the portion of the
principal amount thereof to be redeemed. A new Note in principal amount at
maturity equal to the unredeemed portion thereof will be issued in the name of
the Holder thereof upon cancellation of the original Note.
The Notes are not subject to any sinking fund.
The Notes are subject to defeasance at the option of the
Company as provided in the Indenture.
As long as this Note is represented in global form (the
"Global Security") registered in the name of the Depositary or its nominee,
except as provided in the Indenture and subject to certain limitations therein
set forth, no Global Security shall be exchangeable or transferrable.
If an Event of Default (as defined in the Indenture) with
respect to the Notes shall occur and be continuing, the principal plus any
accrued interest may be declared due and payable in the manner and with the
effect and subject to the conditions provided in the Indenture.
The Indenture permits the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities then Outstanding of all series which are affected by such amendment
or modification, except that certain amendments which do not adversely affect
the rights of any Holder of the Securities may be made without the approval of
Holders of the Securities. No amendment or modification may, among other things,
extend the time of payment of the principal, or any installment of the principal
of any Security, reduce the principal amount thereof, reduce the rate or extend
the time of payment of any interest thereon, or reduce the aforesaid majority in
aggregate principal amount of Securities of any series, the consent of the
Holders of which is required for any such amendment or modification, without the
consent of each Security holder affected.
Notwithstanding any provision in the Indenture or any
provision of this Note, the Holder of this Note shall have the right, which is
absolute and unconditional, to receive payment of the principal of (and premium,
if any) and interest on this Note at the times, place and rate, and in the coin
or currency herein prescribed.
This Note shall be deemed to be a contract under the laws of
the State of Illinois, 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.
<PAGE>
All terms used in this Note which are defined in the Indenture
have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee by manual signature, this Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
* * * * *
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed.
Dated:
UNITED STATES CELLULAR CORPORATION
By:
-----------------------------------------
Name:
Title:
Attest:
-----------------------------------------
Name:
Title:
This is one of the Securities of the
series designated herein issued under
the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
Dated:
By:
-----------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT FORM
================================================================================
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
-----------------------------------------
Insert assignee's soc. sec. or tax I.D. no.
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
and all rights thereunder and irrevocably appoint_______________________________
- --------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him. ____________________________________________
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:__________________________ ______________________________
______________________________
NOTICE: The signature to this assignment must correspond with the name
as it appears on the first page of the within Note.
<PAGE>
