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Exhibit 4.1
American Portable Telecom, Inc.,
as Issuer
Telephone and Data Systems, Inc.,
as Guarantor
AND
The First National Bank of Chicago,
as Trustee
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Indenture
Dated as of November 4, 1996
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$226,245,000
Series A Zero Coupon Notes Due 2006
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined.......................... 2
Agent Member................................... 2
Authenticating Agent........................... 2
Board of Directors............................. 2
Board Resolution............................... 2
Business Day................................... 2
Capital Stock.................................. 3
Capitalized Rent............................... 3
Consolidated Capitalization.................... 3
Corporate Trust Office......................... 3
Debt ..................................... 4
Definitive Notes............................... 4
Depositary..................................... 4
Event of Default............................... 4
Exchange Act................................... 4
Funded Debt.................................... 4
Guarantee ..................................... 4
Global Note.................................... 4
Guarantor ..................................... 4
Government Obligations......................... 5
Holder ..................................... 5
Holder of Notes................................ 5
Noteholder..................................... 5
IAI ..................................... 5
Indenture ..................................... 5
Indenture Obligations.......................... 5
Issuer ..................................... 6
Issuer Order................................... 6
Issue Price.................................... 6
Lien ..................................... 6
Material Adverse Effect........................ 6
Notes ..................................... 6
Notes Custodian................................ 6
Officer ..................................... 6
Officers' Certificate.......................... 6
Opinion of Counsel............................. 7
Original Issue Discount........................ 7
Outstanding.................................... 7
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Paying Agent................................... 8
Person ..................................... 8
Principal Amount at Maturity................... 8
QIB ..................................... 8
Redemption Price............................... 8
Registrar ..................................... 8
Responsible Officer............................ 8
Sale and Leaseback Transaction................. 9
Secured Debt................................... 9
SEC ..................................... 9
Securities Act................................. 9
Subsidiary..................................... 9
subsidiary..................................... 9
Successor Company.............................. 9
Tax Consolidated Subsidiary.................... 10
Transfer Restricted Notes...................... 10
Trustee ..................................... 10
Wholly Owned Subsidiary........................ 10
ARTICLE TWO
THE NOTES
SECTION 2.1 Form and Dating................................. 10
SECTION 2.2 Execution and Authentication.................... 12
SECTION 2.3 Registrar and Paying Agent...................... 13
SECTION 2.4 Paying Agent To Hold Money in Trust............. 13
SECTION 2.5 Transfer and Exchange........................... 14
SECTION 2.6 Replacement Notes............................... 20
SECTION 2.7 Temporary Notes and Certificated
Notes........................................... 21
SECTION 2.8 Cancellation.................................... 22
SECTION 2.9 CUSIP Numbers................................... 22
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE GUARANTOR
SECTION 3.1 Payment of Notes................................ 23
SECTION 3.2 Offices for Payments, etc....................... 23
SECTION 3.3 Appointment to Fill a Vacancy in
Office of Trustee............................... 24
SECTION 3.4 Paying Agents................................... 24
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SECTION 3.5 Written Statement to Trustee.................... 25
SECTION 3.6 Limitation on Secured Debt...................... 26
SECTION 3.7 Limitation on Sale and Leaseback................ 28
SECTION 3.8 Voting Control of the Issuer.................... 31
SECTION 3.9 Insurance .................................... 31
ARTICLE FOUR
NOTEHOLDERS LISTS AND REPORTS
BY THE ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Names and
Addresses of Noteholders........................ 31
SECTION 4.2 Preservation and Disclosure of
Noteholders Lists............................... 32
SECTION 4.3 Reports by the Issuer and the
Guarantor....................................... 33
SECTION 4.4 Reports by the Trustee.......................... 34
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined;
Acceleration of Maturity;
Waiver of Default............................... 36
SECTION 5.2 Collection of Indebtedness by
Trustee; Trustee May Prove Debt................. 40
SECTION 5.3 Application of Proceeds......................... 42
SECTION 5.4 Suits for Enforcement........................... 43
SECTION 5.5 Restoration of Rights on Abandonment
of Proceedings.................................. 43
SECTION 5.6 Limitations on Suits by Noteholders............. 44
SECTION 5.7 Unconditional Right of Noteholders
to Institute Certain Suits...................... 45
SECTION 5.8 Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default............... 45
SECTION 5.9 Control by Holders of the Notes................. 45
SECTION 5.10 Waiver of Past Defaults......................... 46
SECTION 5.11 Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances................................... 47
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SECTION 5.12 Right of Court to Require Filing
of Undertaking to Pay Costs..................... 47
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the
Trustee; During Default; Prior
to Default...................................... 48
SECTION 6.2 Certain Rights of the Trustee................... 49
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of the Notes or
Application of Proceeds Thereof................. 51
SECTION 6.4 Trustee and Agents May Hold Notes;
Collections, etc................................ 51
SECTION 6.5 Moneys Held by Trustee.......................... 51
SECTION 6.6 Compensation and Indemnification
of Trustee and Its Prior Claim.................. 52
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc................................ 53
SECTION 6.8 Qualification of Trustee; Conflicting
Interests....................................... 53
SECTION 6.9 Persons Eligible for Appointment
as Trustee...................................... 61
SECTION 6.10 Resignation and Removal; Appointment
of Successor Trustee............................ 61
SECTION 6.11 Acceptance of Appointment by
Successor Trustee............................... 63
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business of Trustee............... 64
SECTION 6.13 Preferential Collection of Claims
Against the Issuer.............................. 65
SECTION 6.14 Appointment of Authenticating
Agent........................................... 70
ARTICLE SEVEN
CONCERNING THE NOTEHOLDERS
SECTION 7.1 Evidence of Action Taken by
Noteholders..................................... 71
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SECTION 7.2 Proof of Execution of Instruments
and of Holding of Notes......................... 72
SECTION 7.3 Holders to be Treated as Owners................. 72
SECTION 7.4 Notes Owned by Issuer Deemed Not
Outstanding..................................... 72
SECTION 7.5 Right of Revocation of Action Taken............. 73
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without
Consent of Noteholders.......................... 74
SECTION 8.2 Supplemental Indentures With Consent
of the Noteholders.............................. 76
SECTION 8.3 Effect of Supplemental Indenture................ 77
SECTION 8.4 Documents to Be Given to Trustee................ 78
SECTION 8.5 Notation on Notes in Respect of
Supplemental Indentures......................... 78
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Guarantor and the
Issuer Not to Merge, Consolidate,
Sell or Convey Property Except
Under Certain Conditions........................ 78
SECTION 9.2 Notes to be Secured in Certain
Events.......................................... 80
SECTION 9.3 Successor Company Substituted................... 80
SECTION 9.4 Officers' Certificate and Opinion of
Counsel Delivered to Trustee.................... 81
ARTICLE TEN
SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of
Indenture...................................... 81
SECTION 10.2 Application by Trustee of Funds
Deposited for Payment of Notes................. 86
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SECTION 10.3 Repayment of Moneys Held by Paying
Agent.......................................... 86
SECTION 10.4 Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two Years
............................................. 87
SECTION 10.5 Indemnity for Government Obligations
............................................. 87
SECTION 10.6 Reinstatement.................................. 88
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders,
Officers and Directors of Issuer and
Guarantor Exempt from Individual
Liability...................................... 88
SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and Holders of
Notes.......................................... 89
SECTION 11.3 Successors and Assigns of Issuer or
Guarantor Bound by Indenture................... 89
SECTION 11.4 Notices and Demands on Issuer, the
Guarantor, Trustee and Holders of
Notes.......................................... 89
SECTION 11.5 Officers' Certificates and Opinions
of Counsel; Statements to be
Contained Therein.............................. 90
SECTION 11.6 Payments Due on Saturdays, Sundays
and Holidays................................... 92
SECTION 11.7 Illinois Law to Govern......................... 92
SECTION 11.8 Counterparts................................... 92
SECTION 11.9 Effect of Headings............................. 92
ARTICLE TWELVE
REDEMPTION OF NOTES
SECTION 12.1 Right to Redeem; Notices to Trustee............ 92
SECTION 12.2 Notice of Redemption; Partial
Redemptions.................................... 93
SECTION 12.3 Payment of Notes Called for
Redemption..................................... 94
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SECTION 12.4 Exclusion of Certain Notes from
Eligibility for Selection for
Redemption..................................... 95
ARTICLE THIRTEEN
GUARANTEE
SECTION 13.1 Telephone and Data Systems, Inc.
Guarantee...................................... 96
SECTION 13.2 Continuing Guarantee; No Right of
Set-Off; Independent Obligation................ 96
SECTION 13.3 Guarantee Unconditional........................ 97
SECTION 13.4 Right to Demand Full Performance............... 100
SECTION 13.5 Waivers .................................... 101
SECTION 13.6 The Guarantor Remains Obligated in
the Event the Issuer is No Longer
Obligated to Discharge Indenture
Obligations.................................... 102
SECTION 13.7 Subrogation.................................... 102
SECTION 13.8 Guarantee Is In Addition to Other
Security....................................... 103
SECTION 13.9 Release of Security Interests.................. 103
SECTION 13.10 No Bar to Further Actions...................... 103
SECTION 13.11 Failure to Exercise Rights Shall Not
Operate As a Waiver; No Suspension
of Remedies.................................... 103
SECTION 13.12 Release of Guarantee........................... 104
SECTION 13.13 Execution of Guarantee......................... 104
SECTION 13.14 Guarantee Unsecured Unsubordinated
Indebtedness of Guarantor...................... 105
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EXHIBIT A Form of Note
vii
THIS INDENTURE dated as of November 4, 1996 (the
"Indenture") among American Portable Telecom, Inc., a Delaware corporation, as
issuer (the "Issuer"), Telephone and Data Systems, Inc., an Iowa corporation, as
Guarantor (the "Guarantor"), and The First National Bank of Chicago, as trustee
(the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue
of the Series A Zero Coupon Notes Due November 1, 2006 (the "Notes) up to
$226,245,000 principal amount at maturity.
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 Notes;
WHEREAS, the Guarantor has duly authorized the
full and unconditional guarantee by the Guarantor, when and as the same shall
become due and payable, of the Issuer's due and punctual payment of its
obligations under this Indenture and the Notes, whether at maturity, by
declaration of acceleration, upon redemption or otherwise; 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 Notes by the holders thereof, the Issuer, the Guarantor and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective Holders from time to time of the Notes as follows:
ARTICLE ONE
DEFINITIONS
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 accounting terms used herein and not otherwise expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "generally accepted
accounting principles" means such accounting principles as are generally
accepted at the time of any computation. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision. The
terms defined in this Article include the plural as well as the singular.
"Agent Member" shall have the meaning set forth in
Section 2.1(b).
"Authenticating Agent" shall have the meaning set
forth in Section 6.14.
"Board of Directors" means the Board of Directors
of the Issuer or the Guarantor, as the case may be, 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
or the Guarantor, as the case may be, to have been duly adopted or consented to
by the Board of Directors of the Issuer or the Guarantor, as the case may be,
and to be in full force and effect, and delivered to the Trustee.
"Business Day" means, with respect to the Notes, a
day on which, in any city where amounts are payable on the Notes as therein
specified, banking institutions are not authorized or required by law or
regulation to close.
2
"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 any Person
the total of (a) Funded Debt, (b) the par value or, in the case of Capital Stock
with no par value, a value stated on the books, of all outstanding shares of
Capital Stock, (c) the paid-in surplus and retained earnings (or minus the net
surplus deficit, as the case may be), (d) deferred taxes and deferred investment
tax credits, (e) Capitalized Rent and (f) minority interests in subsidiaries, of
such Person. Notwithstanding the foregoing, for purposes of the definition of
"Event of Default," "Capitalization" shall have the meaning set forth in Section
5.1 hereof.
"Capitalized Rent" means the present value
(discounted semi-annually at the yield to maturity on the Notes, calculated from
the date of issuance thereof) of the total net amount of rent payable for the
remaining term of any lease of property by the Guarantor (including any period
for which such lease has been extended); provided, however, that no such rental
obligation shall be deemed to be Capitalized Rent unless the lease resulted from
a Sale and Leaseback Transaction. The total net amount of rent payable under any
lease for any period shall be the total amount of the rent payable by the lessee
with respect to such period but shall not include amounts required to be paid on
account of maintenance and repairs, insurance, taxes, assessments, water rates,
sewer rates and similar charges.
"Consolidated Capitalization" means the
Capitalization of the Guarantor and its Subsidiaries determined on a
consolidated basis as of the end of the Guarantor's then most recently reported
fiscal year or quarter, as the case may be, including minority interests in its
Subsidiaries.
"Corporate Trust Office" means the principal
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of original execution
of this Indenture is located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
XX
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60670, Attention: Corporate Trust Administration, except that, with respect to
presentation of the Notes for payment or registration of transfers or exchanges
and the location of the register, such term means the office or agency of the
Trustee at which at any particular time its corporate agency business shall be
conducted, which at the date of original execution of this Indenture is located
at c/o First Chicago Trust Company of Xxx Xxxx, 00 Xxxx Xxxxxx - 0xx Xxxxx
Window 2, Xxx Xxxx, Xxx Xxxx 00000.
"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.
"Definitive Notes" shall have the meaning set
forth in Section 2.1(c).
"Depositary" means The Depository Trust Company,
its nominees and their respective successors.
"Event of Default" means any event or condition
specified as such in Section 5.1.
"Exchange Act" means the Securities Exchange Act
of 1934 and the rules and regulations promulgated
thereunder.
"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).
"Guarantee" means the guarantee by the Guarantor
of the Issuer's obligations under this Indenture and the
Notes, as provided in Article Thirteen.
"Global Note" shall have the meaning set forth in
Section 2.1(a).
"Guarantor" means Telephone and Data Systems,
Inc., an Iowa corporation, and, subject to Article Nine, its successors and
assigns.
4
"Government Obligations" means securities that are
(a) direct obligations of the United States of America, (b) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
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.
"Holder", "Holder of Notes", "Noteholder" or other
similar terms means the Person in whose name such Note is registered on the
books of the Registrar.
"IAI" shall have the meaning set forth in Section
2.1(c).
"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 the
Notes established, as provided hereunder.
"Indenture Obligations" means the obligations of
the Issuer under this Indenture or under the Notes to pay the Principal Amount
at Maturity, Issue Price, accrued Original Issue Discount and Redemption Price
on the Notes when due and payable, and all other amounts due or to become due
under or in connection with this Indenture, the Notes and the performance of all
other obligations to the Trustee and the Holders under this Indenture and the
Notes, according to the terms thereof.
5
"Issuer" means American Portable Telecom, Inc., a
Delaware corporation and, subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request
or order of the Issuer or the Guarantor, as the case may be, 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 or the Guarantor, as the case may be.
"Issue Price" of any Note means, in connection
with the original issuance of such Note, the initial issue price as set forth on
the face of the Note.
"Lien" means any mortgage, pledge, security
interest, lien, charge or other encumbrance.
"Material Adverse Effect" means a material adverse
effect on (a) the business, operations, affairs, financial condition, assets or
properties of the Guarantor and its Subsidiaries taken as a whole, (b) the
rights and remedies of the Holders under this Indenture or (c) the ability of
the Guarantor or the Issuer to perform its obligations under this Indenture.
"Notes" shall have the meaning set forth in the
preamble.
"Notes Custodian" means the custodian with respect
to a Global Note (as appointed by the Depository), or any successor person
thereto and shall initially be the Trustee.
"Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer or the Secretary of the Issuer or
the Guarantor, as the case may be.
"Officers' Certificate" means a certificate signed
by the Chairman of the Board of Directors, the President or
6
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 or the Guarantor, as the case may be,
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 or
the Guarantor, as the case may be. Each such opinion shall include the
statements provided for in Section 11.5, if and to the extent required thereby.
"Original Issue Discount" of any Note means the
difference between the Issue Price and the Principal Amount at Maturity of the
Note as set forth on the face of the Note.
"Outstanding", when used with reference to Notes,
shall, subject to the provisions of Section 7.4, mean, as of any particular
time, all Notes authenticated and delivered by the Trustee under this Indenture,
except:
(a) Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Subject to Article 10, Notes, 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 Notes (if the
Issuer shall act as its own Paying Agent), provided that if such Notes,
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
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(c) Notes which shall have been paid or in
substitution for which other Notes shall have been authenticated and
delivered pursuant to the terms of Section 2.6 (except with respect to
any such Note as to which proof satisfactory to the Trustee is
presented that such Note is held by a Person in whose hands such Note
is a legal, valid and binding obligation of the Issuer).
"Paying Agent" shall have the meaning set forth in
Section 2.3.
"Person" means any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Principal Amount at Maturity" of a Note means the
Principal Amount at Maturity as set forth on the face of the Note.
"QIB" shall have the meaning set forth in Section
2.3.
"Redemption Price" shall have the meaning set
forth in paragraph 5 of the Notes.
"Registrar" shall have the meaning set forth in
Section 2.3.
"Responsible Officer", when used with respect to
the Trustee, means the chairman of the board of directors, any vice chairman of
the board of directors, the chairman of the trust committee, the chairman of the
executive committee, any vice chairman of the executive committee, the
president, any vice president (whether or not designated by numbers or words
added before or after the title "vice president"), the cashier, the secretary,
the treasurer, any trust officer, any assistant trust officer, any assistant
vice president, any assistant cashier, any assistant secretary, any assistant
treasurer or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom
8
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 Guarantor 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 of the Guarantor reasonably finds such
term to be in the best interest of the Guarantor 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 Guarantor)), which property has been or is to be sold or
transferred by the Guarantor (i) to any subsidiary of the Guarantor in
contemplation of or in connection with such arrangement or (ii) to such other
Person.
"Secured Debt" means Debt of the Guarantor secured
by any Lien on property (including Capital Stock or indebtedness of Subsidiaries
of the Guarantor) owned by the Guarantor.
"SEC" shall have the meaning set forth in Section
2.1(a).
"Securities Act" shall have the meaning set forth
in Section 2.1(a).
"Subsidiary" means a Person which is consolidated
with the Issuer or the Guarantor, as applicable, in accordance with generally
accepted accounting principles.
"subsidiary" means, with respect to any Person,
any corporation, association, partnership or other business entity of which more
than 50% of the total voting power of shares of Capital Stock or other interests
(including partnership interests) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i) such
Person, (ii) such Person and one or more subsidiaries of such Person or (iii)
one or more subsidiaries of such Person.
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"Successor Company" shall have the meaning set
forth in Section 9.1.
"Tax Consolidated Subsidiary" means a subsidiary
of the Guarantor with which, at the time a Sale and Leaseback Transaction is
entered into by the Guarantor, the Guarantor would be entitled to file a
consolidated federal income tax return.
"Transfer Restricted Notes" means Definitive Notes
and Notes that bear or are required to bear the legend set
forth in Section 2.5(d).
"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.
"Wholly Owned Subsidiary" means a Subsidiary all
the capital stock of which (other than directors' qualifying shares) is owned by
the Issuer or the Guarantor, as applicable, or another Wholly Owned Subsidiary.
ARTICLE TWO
THE NOTES
SECTION 2.1 Form and Dating. The Notes and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture. The Notes may have notations, legends or endorsements required by law
and agreements to which the Issuer is subject, if any, or usage (provided that
any such notation, legend or endorsement is in a form acceptable to the Issuer).
The Notes shall be dated the date of their authentication. The terms of the
Notes set forth in Exhibit A are part of the terms of this Indenture.
(a) Global Notes. The Notes offered and sold to
"qualified institutional buyers" (as defined in Rule 144A under the Securities
Act) (each a "QIB") or in reliance on Regulation S under the Securities Act
("Regulation S") shall be issued initially in the form of one permanent global
Note
10
in definitive, fully registered form without interest coupons with the global
Note legend and restricted Note legend set forth in Exhibit A hereto (the
"Global Note"), which shall be deposited on behalf of the purchasers of the
Notes represented thereby with the Trustee, at its New York office, as custodian
for the Depository (or with such other custodian as the Depository may direct),
and registered in the name of the Depository or a nominee of the Depository,
duly executed by the Issuer and the Guarantor and authenticated by the Trustee
as hereinafter provided. The aggregate Principal Amount at Maturity of the
Global Note may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depository or its nominee as hereinafter
provided.
(b) Book-Entry Provisions. This Section 2.1(b)
shall apply only to the Global Note deposited with or on
behalf of the Depository.
The Issuer and the Guarantor shall execute and the
Trustee shall, in accordance with this Section 2.1(b), authenticate and deliver
initially one Global Note that (a) shall be registered in the name of the
Depository or the nominee of the Depository and (b) shall be delivered by the
Trustee to the Depository or pursuant to the Depository's instructions or held
by the Trustee as custodian for the Depository.
Members of, or participants in, the Depository
("Agent Members") shall have no rights under this Indenture with respect to the
Global Note held on their behalf by the Depository or by the Trustee as the
custodian of the Depository or under such Global Note, and the Depository may be
treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as
the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the
Trustee or any agent of the Issuer or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices of such Depository governing the exercise of the rights of a
Holder of a beneficial interest in the Global Note.
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(c) Certificated Notes. Except as provided in
this Section or Section 2.5 or 2.7, owners of beneficial interests in the Global
Note will not be entitled to receive physical delivery of certificated Notes.
Purchasers of the Notes who are institutional "accredited investors" as
described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act (each an
"IAI") and who are not QIBs and did not purchase Notes sold in reliance on
Regulation S will receive certificated Notes bearing the restricted Note legend
set forth in Exhibit A hereto (such securities as held by an IAI are herein
referred to as "Definitive Notes"); provided, however, that upon transfer of
such certificated Notes to a QIB or in reliance on Regulation S such
certificated Notes will, unless the Global Note has previously been exchanged,
be exchanged for an interest in the Global Note pursuant to the provisions of
Section 2.5. Definitive Notes will bear the restricted Note legend set forth on
Exhibit A unless removed in accordance with Section 2.5(d).
SECTION 2.2 Execution and Authentication. Two
Officers shall sign the Notes for the Issuer by manual or facsimile signature.
The Issuer's seal shall be impressed, affixed, imprinted or reproduced on the
Notes and may be in facsimile form. The Guarantee shall be executed by one of
the Officers of the Guarantor under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries.
If an Officer whose signature is on a Note no
longer holds that office at the time the Trustee authenticates the Note, the
Note shall be valid nevertheless.
A Note shall not be valid until an authorized
signatory of the Trustee or a duly appointed Authenticating Agent manually signs
the certificate of authentication on the Note. The signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee or duly appointed Authenticating Agent
shall authenticate and deliver Notes for issue in an aggregate Principal Amount
at Maturity of $226,245,000 upon a written order of the Issuer signed by two
Officers or by an Officer and either an Assistant Treasurer or an Assistant
12
Secretary of the Issuer. Such order shall specify the amount of the Notes to be
authenticated and the date on which the issue of Notes is to be authenticated.
The aggregate Principal Amount at Maturity of Notes outstanding at any time may
not exceed $226,245,000, except as provided in Section 2.6.
SECTION 2.3 Registrar and Paying Agent. The
Issuer shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (the "Registrar") and an office or
agency where Notes may be presented for payment (the "Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Issuer may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Issuer shall enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-registrar not a party to this
Indenture. The agreement shall implement the provisions of this Indenture that
relate to such agent. The Issuer shall notify the Trustee of the name and
address of any such agent. If the Issuer fails to maintain a Registrar or Paying
Agent, the Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 6.6. The Issuer or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent,
Registrar, co-registrar or transfer agent.
SECTION 2.4 Paying Agent To Hold Money in Trust.
Prior to each due date of payments in respect of any Note, the Issuer shall
deposit with the Paying Agent a sum sufficient to make such payments when so
becoming due. The Issuer shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Noteholders or the Trustee all money held by the Paying Agent for the
making of payments in respect of the Notes and shall notify the Trustee of any
default by the Issuer in making any such payments. If the Issuer or a Subsidiary
acts as Paying Agent, it shall segregate the money held by it as Paying Agent
and hold it as a separate trust fund. The Issuer at any time may require a
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed by
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the Paying Agent. Upon complying with this Section, the
Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.5 Transfer and Exchange. (a) Transfer
and Exchange of Definitive Notes. When Definitive Notes are
presented to the Registrar or a co-registrar with a request:
(x) to register the transfer of such Definitive
Notes; or
(y) to exchange such Definitive Notes for an
equal Principal Amount at Maturity of Definitive Notes
of other authorized denominations,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if the requirements of this Indenture are met; provided, however,
that the Definitive Notes surrendered for transfer or exchange:
i) shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory to the
Issuer and the Registrar or co-registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing; and
ii) are being transferred or exchanged pursuant
to Section 2.5(b) or pursuant to clause (A), (B) or (C) below, and are
accompanied by the following additional information and documents, as
applicable:
(A) if such Definitive Notes are
being delivered to the Registrar by a Holder
for registration in the name of such Holder,
without transfer, a certification from such
Holder to that effect (in the form set forth
on the reverse of the Note); or
(B) if such Definitive Notes are being
transferred to the Issuer a certification to that
effect (in the form set forth on the reverse of
the Note); or
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(C) if such Definitive Notes are
being transferred pursuant to an exemption
from registration in accordance with Rule 144
or Regulation S under the Securities Act: (i)
a certificate to that effect (in the form set
forth on the reverse of the Note), and (ii) if
the Issuer or Registrar so requests, evidence
reasonably satisfactory to them as to the
compliance with the restrictions set forth in
the legend set forth in Section 2.5(d)(i).
(b) Restrictions on Transfer of a Definitive Note
for a Beneficial Interest in the Global Note. A Definitive Note may not be
exchanged for a beneficial interest in the Global Note except upon satisfaction
of the requirements set forth below. Upon receipt by the Trustee of a Definitive
Note, duly endorsed or accompanied by appropriate instruments of transfer, in
form satisfactory to the Trustee, together with:
i) certification, in the form set forth on the
reverse of the Note, that such Definitive Note is being transferred to
a QIB in accordance with Rule 144A under the Securities Act or to a
non-U.S. person in accordance with Rule 904 under the Securities Act;
and
ii) written instructions directing the Trustee to
make, or to direct the Notes Custodian to make, an adjustment on its
books and records with respect to such Global Note to reflect an
increase in the aggregate Principal Amount at Maturity of the Notes
represented by the Global Note,
then the Trustee shall cancel such Definitive Note and cause, or direct the
Notes Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Notes Custodian, the
aggregate Principal Amount at Maturity of Notes represented by the Global Note
to be increased accordingly. If no Global Note is then outstanding, the Issuer
shall issue and the Trustee shall authenticate, upon written order of the Issuer
in the form of an Officers' Certificate, a new Global Note in the appropriate
Principal Amount at Maturity.
15
(c) Transfer and Exchange of Global Note.
i) The transfer and exchange of the Global Note
or beneficial interests therein shall be effected through the
Depository, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures
of the Depository therefor, if applicable.
ii) Notwithstanding any other provisions of this
Indenture (other than the provisions set forth in Section 2.7), the
Global Note may not be transferred as a whole except by the Depository
to a nominee of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such
successor Depository.
iii) In the event that the Global Note is
exchanged for Notes in definitive form pursuant to Section 2.7, such
Notes may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.5
(including the certification requirements set forth on the reverse of
the Notes intended to ensure that such transfers comply with Rule 144A
or Regulation S, as the case may be) and such other procedures as may
from time to time be adopted by the Issuer.
(d) Legend.
i) Except as permitted by the following
paragraph (ii), each Note certificate evidencing the Global Note and
the Definitive Notes (and all Notes issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the
following form:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
UNDER APPLICABLE STATE SECURITIES LAWS, AND THIS NOTE MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
16
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF
THE ISSUER THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (i) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (ii) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904
UNDER THE SECURITIES ACT, (iii) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE) OR (iv) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH OF CASES (i) THROUGH (iv) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE."
When set forth on a Definitive Note, the
legend will include the following additional words:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL
DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS."
ii) Upon any sale or transfer of a Transfer
Restricted Note (including any Transfer Restricted Note represented by
a Global Note) pursuant to Rule 144 under the Securities Act:
(A) in the case of any Transfer
Restricted Note that is a Definitive Note, the
Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Note for a
certificated Note that does not bear the
legend set forth above and
17
rescind any restriction on the transfer of such
Transfer Restricted Note;
(B) in the case of any Transfer
Restricted Note that is represented by the
Global Note, the Registrar shall permit the
Holder thereof to request the issuance of a
certificated Note that does not bear the
legend set forth above and rescind any
restrictions on the transfer of such Transfer
Restricted Note, if the sale or exchange was
made in reliance on Rule 144 and the Holder
certifies to that effect in writing to the
Registrar (such certification to be in the
form set forth on the reverse of the Note).
(e) Cancellation or Adjustment of Global Note.
At such time as all beneficial interests in the Global Note have either been
exchanged for certificated Notes, redeemed, repurchased or cancelled, such
Global Note shall be returned to the Depository for cancellation or retained and
cancelled by the Trustee. At any time prior to such cancellation, if any
beneficial interest in the Global Note is exchanged for certificated Notes,
redeemed, repurchased or cancelled, the Principal Amount at Maturity of Notes
represented by such Global Note shall be reduced and an adjustment shall be made
by the Trustee or the Notes Custodian to reflect such reduction on the books and
records of the Notes Custodian for such Global Note with respect to such Global
Note.
(f) Obligations with Respect to Transfers and
Exchanges of Notes.
i) To permit registration of
transfers and exchanges, the Issuer and the
Guarantor shall execute and the Trustee shall
authenticate certificated Notes, Definitive
Notes and the Global Note at the Registrar's
or co-registrar's request.
ii) The Issuer may require payment
of a sum sufficient to pay all taxes,
assessments or other governmental charges in
connection with any transfer or exchange
pursuant to this Section 2.5.
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iii) The Issuer shall not be required to
make and the Registrar or co-registrar need
not register transfers or exchanges of
certificated or Definitive Notes selected for
redemption (except, in the case of any
Definitive Note to be redeemed in part, the
portion thereof not to be redeemed), or any
Notes for a period of 15 days before a
selection of Notes to be so redeemed.
iv) Prior to the due presentation
for registration of transfer of any Note, the
Issuer, the Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and
treat the person in whose name a Note is
registered as the absolute owner of such Note
for the purpose of receiving payments in
respect of such Note and for all other
purposes whatsoever, whether or not such Note
is overdue, and none of the Issuer, the
Trustee, the Paying Agent, the Registrar or
any co-registrar shall be affected by notice
to the contrary.
v) All Notes issued upon any
transfer or exchange pursuant to the terms of
this Indenture will evidence the same debt and
will be entitled to the same benefits under
this Indenture as the Notes surrendered upon
such transfer or exchange.
(g) No Obligation of the Trustee.
i) The Trustee shall have no
responsibility or obligation to any beneficial
owner of the Global Note, a member of, or a
participant in the Depository or other Person
with respect to the accuracy of the records of
the Depository or its nominee or of any
participant or member thereof, with respect to
any ownership interest in the Notes or with
respect to the delivery to any participant,
member, beneficial owner or other Person
(other than the Depository) of any notice
(including any notice of redemption) or the
payment of any amount, under or with respect
to such Notes. All notices and communications
to be given to the Holders and all payments to
be made to Holders under the Notes shall be
given or made
19
only to or upon the order of the registered
Holders (which shall be the Depository or its
nominee in the case of the Global Note). The
rights of beneficial owners in the Global Note
shall be exercised only through the Depository
subject to the applicable rules and procedures
of the Depository. The Trustee may rely and
shall be fully protected in relying upon
information furnished by the Depository with
respect to its members, participants and any
beneficial owners.
ii) The Trustee shall have no
obligation or duty to monitor, determine or
inquire as to compliance with any restrictions
on transfer imposed under this Indenture or
under applicable law with respect to any
transfer of any interest in any Note
(including any transfers between or among
Depository participants, members or beneficial
owners in the Global Note) other than to
required delivery of such certificates and
other documentation or evidence as are
expressly required by, and to do so if and
when expressly required by, the terms of this
Indenture, and to examine the same to
determine substantial compliance as to form
with the express requirements hereof.
SECTION 2.6 Replacement Notes. If a mutilated
Note is surrendered to the Registrar or if the Holder of a Note claims that the
Note has been lost, destroyed or wrongfully taken, the Issuer shall issue, the
Guarantor shall execute and the Trustee shall authenticate a replacement Note if
the Holder satisfies any reasonable requirements of the Trustee. Such Holder
shall furnish an indemnity bond sufficient in the judgment of the Issuer, the
Guarantor and the Trustee to protect the Issuer, the Guarantor, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Note is replaced. The Issuer and the Trustee may charge the
Holder for their expenses in replacing a Note.
Every replacement Note is an additional obligation
of the Issuer and the Guarantor evidencing the same debt as
the Note for which it is a replacement.
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All Notes 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 Notes 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 2.7 Temporary Notes and Certificated
Notes. (a) Until definitive Notes are ready for delivery, the Issuer may
prepare, the Guarantor shall execute and the Trustee shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Issuer considers appropriate
for temporary Notes. Without unreasonable delay, the Issuer shall prepare, the
Guarantor shall execute and the Trustee shall authenticate definitive Notes and
deliver them in exchange for temporary Notes.
(b) The Global Note deposited with the Depository or with
the Trustee as custodian for the Depository pursuant to Section 2.1
shall be transferred to the beneficial owners thereof in the form of
certificated Notes in an aggregate Principal Amount at Maturity equal to the
Principal Amount at Maturity of such Global Note, in exchange for such Global
Note, only if such transfer complies with Section 2.5 and (i) the Depository
notifies the Issuer that it is unwilling or unable to continue as Depository for
such Global Note or if at any time such Depository ceases to be a "clearing
agency" registered under the Exchange Act and a successor depository is not
appointed by the Issuer within 90 days of such notice, (ii) an Event of Default
has occurred and is continuing or (iii) the Issuer, in its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
certificated Notes under this Indenture.
(c) Any Global Note that is transferable to the
beneficial owners thereof pursuant to this Section shall be surrendered by the
Depository to the Corporate Trust Office of the Trustee located in the Borough
of Manhattan, The City of New York, to be so transferred, in whole or from time
to time in part, without charge, and the Trustee shall
21
authenticate and deliver, upon such transfer of each portion of such Global
Note, an equal aggregate Principal Amount at Maturity of Notes of authorized
denominations. Any portion of the Global Note transferred pursuant to this
Section shall be executed, authenticated and delivered only in denominations of
$1,000 and any integral multiple thereof and registered in such names as the
Depository shall direct. Any Note delivered in exchange for an interest in the
Global Note shall, except as otherwise provided by Section 2.5(d), bear the
restricted notes legend set forth in Exhibit A hereto.
(d) Subject to the provisions of Section 2.7(c),
the registered Holder of the Global Note may grant proxies and otherwise
authorize any person, including agent members, participants and persons that may
hold interests through agent members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
(e) In the event of the occurrence of any of the
events specified in Section 2.7(b), the Issuer will promptly make available to
the Trustee a reasonable supply of certificated Notes in definitive, fully
registered form.
SECTION 2.8 Cancellation. The Issuer at any time
may deliver Notes to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment or
cancellation and deliver such cancelled Notes to the Issuer. The Issuer may not
issue new Notes to replace Notes it has redeemed, paid or delivered to the
Trustee for cancellation.
SECTION 2.9 CUSIP Numbers. The Issuer in issuing
the Notes may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Notes, and any such
22
redemption shall not be affected by any defect in or omission of such numbers.
The Issuer will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE GUARANTOR
SECTION 3.1 Payment of Notes. The Issuer
covenants and agrees for the benefit of the Noteholders that it will duly and
punctually make all payments in respect of the Notes on the dates and in the
manner provided in the Notes or pursuant to this Indenture. Principal Amount at
Maturity, Issue Price, accrued Original Issue Discount, Redemption Price and
interest, if any, shall be considered paid on the applicable date due if on such
date the Trustee or the Paying Agent holds, in accordance with this Indenture,
money or securities, if permitted hereunder, sufficient to pay all such amounts
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
Noteholders on that date.
SECTION 3.2 Offices for Payments, etc. So long
as Notes are outstanding hereunder, the Issuer will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Notes may be
presented for payment or for exchange as provided in this Indenture and where
the Notes may be presented for registration of transfer as provided in this
Indenture.
The Issuer and the Guarantor 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 or the Guarantor in respect of the Notes or
this Indenture may be served.
The Issuer and the Guarantor 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 or the Guarantor 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
23
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 Notes may be presented for
payment, where the Notes may be presented for exchange as provided in this
Indenture and where the Notes may be presented for registration of transfer as
provided in this Indenture, and the Issuer may from time to time rescind any
such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Issuer of its obligation to maintain any office
or agency required to be provided for in this Section. The Issuer will give to
the Trustee prompt written notice of any such designation or rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in
Office of Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in
the office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee with respect to the Notes
hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer
shall appoint a Paying Agent other than the Trustee with respect to Notes, 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 payments in
respect of the Notes (whether such sums have
been paid to it by the Issuer or the
Guarantor) in trust for the benefit of the
Holders of the Notes or of the Trustee, and
(b) that it will give the Trustee
notice of any failure by the Issuer or the
Guarantor to make any payments in respect of
the Notes when the same shall be due and
payable, and
24
(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
payments in respect of any Notes, deposit with the Paying Agent a sum sufficient
to make such payment 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 Notes, it will, on or before each due date of payments in
respect of any Notes, set aside, segregate and hold in trust for the benefit of
the Holders of the Notes a sum sufficient to pay such payment so becoming due.
The Issuer will promptly notify the Trustee of any failure to take such action.
Anything in this section to the contrary
notwithstanding, but subject to Section 10.1, the Issuer may at any time, for
the purpose of obtaining a satisfaction and discharge with respect to the Notes
hereunder, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust for the Notes by the Issuer or any Paying Agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trust
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
Guarantor will deliver to the Trustee on or before April 30 in each year
(beginning with April 30, 1997) 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 Guarantor they would normally have knowledge
of any default by the Guarantor in the performance of any covenants contained in
this Indenture, stating whether or not they have knowledge of any
25
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 Notes remain Outstanding, the Guarantor 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 Notes then
Outstanding (together with, if the Guarantor shall so determine, any other Debt
of or guarantee by the Guarantor ranking equally with the Guarantee and then
existing or thereafter created) shall be secured equally and ratably with (or,
at the option of the Guarantor, prior to) such Secured Debt, unless immediately
after the incurrence of such Secured Debt (and after giving effect to the
application of the proceeds, if any, therefrom), the aggregate principal amount
of all such Secured Debt, together with the aggregate amount of Capitalized Rent
in respect of Sale and Leaseback Transactions (other than Sale and Leaseback
Transactions described in clauses (a) to (e), inclusive, of Section 3.7), would
not exceed 10% of Consolidated Capitalization; provided, however, that the
foregoing restrictions shall not apply to, and there shall be excluded in
computing Secured Debt for the purpose of such restrictions, Secured Debt
secured by:
(a) Liens on property existing at the time of
acquisition of such property by the Guarantor, or Liens to secure the
payment of all or any part of the purchase price of property acquired
or constructed by the Guarantor (including any improvements to existing
property) created at the time of or within 270 days following the
acquisition of such property by the Guarantor, or Liens to secure any
Secured Debt incurred by the Guarantor 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 Guarantor (including property transferred by
the Guarantor to any subsidiary of the Guarantor in contemplation of or
in connection with the creation of such Lien) or to any property of the
26
Guarantor 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 Guarantor
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
Guarantor, (ii) resulting from such merger, consolidation, sale, lease
or disposition by virtue of any Lien on property granted by the
Guarantor 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 Guarantor 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 Guarantor);
provided, however, that any such Lien referred to in clause (i) shall
not apply to any property of the Guarantor 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 Guarantor other than the property so acquired;
(c) Liens existing on the date of this Indenture;
(d) Liens in favor of a government or
governmental entity to secure partial progress, advance or other
payments, or other obligations, pursuant to any contract or statute or
to secure any Debt incurred for the purpose of financing all or any
part of the cost of acquiring, constructing or improving the property
subject to such Liens (including, without limitation, Liens incurred in
connection with pollution control, industrial revenue, private activity
bond or similar financing);
27
(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.
The Guarantor 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
28
than Secured Debt described in clauses (a) to (h), inclusive, of Section 3.6),
would not exceed 10% of Consolidated Capitalization; provided, however, that the
foregoing restrictions shall not apply to, and there shall be excluded in
computing the aggregate amount of Capitalized Rent for the purpose of such
restrictions, the following Sale and Leaseback Transactions:
(a) any Sale and Leaseback Transaction entered
into to finance the payment of all or any part of the purchase price of
property acquired or constructed by the Guarantor (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 Guarantor to any subsidiary of the
Guarantor in contemplation of or in connection with such Sale and
Leaseback Transaction or involve any property of the Guarantor 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 Guarantor 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 Guarantor;
(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
29
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 within 270 days of the effective
date of such Sale and Leaseback Transaction, the Guarantor 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) the Notes,
(ii) other Funded Debt of the Guarantor which ranks prior to or on a
parity with the Notes or (iii) indebtedness of any subsidiary of the
Guarantor 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 Guarantor (other than any such indebtedness owed to or preferred
stock owned by the Guarantor or any subsidiary of the Guarantor);
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
30
amount to an escrow account for such purpose), the Guarantor may
deliver to the Trustee Outstanding Notes and thereby reduce the amount
to be applied pursuant to (y) of this clause (e) by an amount
equivalent to the aggregate Principal Amount at Maturity of the Notes
so delivered.
SECTION 3.8 Voting Control of the Issuer. The
Guarantor shall at all times maintain beneficial ownership, directly or
indirectly through one or more Subsidiaries, of that number of shares of Capital
Stock of the Issuer (or any entity into which the Issuer is merged or
consolidated in accordance with Article Nine) with at least a majority of the
total voting power of the Issuer entitled (without regard to the occurrence of
any contingency) to vote in the election of directors (or persons performing
similar functions).
SECTION 3.9 Insurance. The Guarantor shall, and
shall cause each of its Subsidiaries to, maintain, with financially sound and
reputable insurers, insurance with respect to its respective properties and
businesses against such casualties and contingencies, of such types, on such
terms and in such amounts (including deductibles, co-insurance and
self-insurance, if adequate reserves are maintained with respect thereto) as is
customary in the case of entities of established reputations engaged in the same
or similar businesses and similarly situated.
ARTICLE FOUR
NOTEHOLDERS LISTS AND REPORTS
BY THE ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Names and
Addresses of Noteholders. The Issuer covenants and agrees that it 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 Notes:
(a) at least semi-annually on October 15 and
April 15, and
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(b) at such other times as the
Trustee may request in writing, within 30 days
after receipt by the Issuer of any such
request, as of a date not more than 15 days
prior to the time such information is
furnished,
provided that if and so long as the Trustee shall be the Registrar for such
Notes and such Notes are registered on the register of the Registrar, such list
shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of
Noteholders 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 the Notes (i) contained in the most recent list furnished to it as
provided in Section 4.1, (ii) received by it in the capacity of Registrar, if so
acting, and (iii) filed with it within 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 Notes
(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
Note 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 Notes, 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 all the
Notes 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
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communication, if any, specified in such
application.
If the Trustee shall elect not to afford to
such applicants access to such information, the Trustee shall, upon the written
request of such applicants, mail to all Holders of the Notes, 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, 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 the Notes or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion.
(c) Each and every Holder of Notes 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 Notes 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 Registrar) be entitled to receive a list of the
Holders of any and all of the Notes.
SECTION 4.3 Reports by the Issuer and the
Guarantor. The Issuer and the Guarantor covenant:
(a) to file with the Trustee, within 15 days
after either the Issuer or the Guarantor is required to
file the same with the SEC, copies of the annual
33
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the SEC may from time to
time by rules and regulations prescribe) which either the Issuer or the
Guarantor may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; and
(b) to transmit by mail to the Holders of Notes
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 either the
Issuer or the Guarantor pursuant to subsection (a) of this Section as
may be required to be transmitted to such Holders by rules and
regulations prescribed from time to time by the SEC.
SECTION 4.4 Reports by the Trustee. (a) Within
60 days after May 15 of each year, commencing with the year 1997, the Trustee
shall transmit by mail to the Holders of the Notes, 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;
(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 Notes, 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 at any time aggregate not more
than 1/2 of 1% of the Principal Amount at Maturity of the Notes
Outstanding on the date of such report;
34
(iii) the amount, interest rate and maturity
date of all other indebtedness owing by the Issuer or the Guarantor 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; and
(v) 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
Notes, 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
the Notes, 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 Notes, on property
or funds held or collected by it as Trustee and which it has not previously
reported pursuant to this subsection (b), except that the Trustee shall not be
required (but may elect) to report such advances if such advances remaining at
any time aggregate 10% or less of the Principal Amount at Maturity of the Notes
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:
35
(i) to all Holders of the Notes, as the names and
addresses of such Holders appear upon the registry
books of the Registrar;
(ii) to such other Holders of Notes 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 Note whose name and address are
preserved at the time by the Trustee as provided in Section 4.2(a).
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined;
Acceleration of Maturity; Waiver of Default. "Event of Default", wherever used
herein, means each of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) default in the payment of all or any part of
the Principal Amount at Maturity, Issue Price, accrued Original Issue
Discount or Redemption Price on any Note as and when the same shall
become due and payable, whether at maturity, upon any redemption, by
declaration or otherwise; or
(b) failure on the part of the Guarantor or the
Issuer duly to observe or perform any other of the covenants or
agreements on the part of the Guarantor or the Issuer, as the case may
be, in the Notes or in this Indenture contained 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"
36
hereunder and demanding that the Guarantor or the Issuer, as the case
may be, 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 Guarantor and 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 Guarantor and the Issuer by the Trustee, or (ii) by
registered or certified mail, return receipt requested, to the
Guarantor, the Issuer and the Trustee by the Holders of not less than
25% in aggregate Principal Amount at Maturity of the Outstanding Notes;
or
(c) the Guarantor shall fail to pay any principal
of, premium or interest on or any other amount payable in respect of
any Debt of the Guarantor that is outstanding in an aggregate principal
amount equal to or greater than 2% of Consolidated Capitalization, when
the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any
default occurs under any instrument under which there is at the time
outstanding, or by which there may be secured or evidenced, any such
Debt of the Guarantor that is outstanding in an aggregate principal
amount equal to or greater than 2% of Consolidated Capitalization which
results in acceleration (whether by declaration or automatically) of
such Debt; provided, however, that it shall not constitute an Event of
Default hereunder as long as the Guarantor is contesting such default
or acceleration in good faith and by appropriate proceedings and no
actual acceleration of such Debt of the Guarantor shall have occurred;
or
(d) the Guarantee ceases to be in full force and
effect or the Guarantor or any Person acting on behalf
of the Guarantor shall deny or disaffirm the
Guarantor's obligations under the Guarantee; or
37
(e) a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Guarantor or
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 Guarantor or the Issuer or
for any substantial part of the property of the Guarantor or the
Issuer, or ordering the winding up or liquidation of the affairs of the
Guarantor or the Issuer, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(f) the Guarantor or 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 Guarantor or the Issuer or for any substantial part of the property
of the Guarantor or the Issuer, or make any general assignment for the
benefit of creditors.
If an Event of Default (other than an Event of Default described in clause
5.1(e) or 5.1(f)) shall have occurred and be continuing, then, and in each and
every such case, unless the principal of all of the Notes shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate Principal Amount at Maturity of the Notes then Outstanding, by
notice in writing to the Guarantor and the Issuer (and to the Trustee if given
by such Holders), may declare the Issue Price of all the Notes then Outstanding
and the Original Issue Discount accrued to the date of such declaration 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 5.1(e)
or 5.1(f) shall have occurred and be continuing, the Issue Price on all the
Notes then Outstanding and the Original Issue Discount accrued thereon shall
thereby become and be immediately due and payable
38
without any declaration or other act on the part of the
Trustee or any Noteholders.
The foregoing paragraph, however, is subject to
the condition that if, at any time after the Issue Price and accrued Original
Issue Discount of the Notes 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 Guarantor or the Issuer shall
pay or shall deposit with the Trustee a sum sufficient to pay the principal
including accrued Original Issue Discount of all Notes which shall have become
due otherwise than by such declaration or acceleration (with interest upon such
amounts, to the extent that payment of such interest is enforceable under
applicable law, at the same rate as the yield to maturity on the Notes 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, other than the non-payment of amounts on the
Notes which shall have become due by such declaration or 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 at
Maturity of all the Notes then Outstanding, by written notice to the Guarantor
and the Issuer and to the Trustee, may waive all defaults 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 purposes of the definition of "Event of
Default," "Capitalization" shall mean the total of (a) Debt, (b) the par value
or, in the case of Capital Stock with no par value, a value stated on the books,
of all outstanding shares of Capital Stock, (c) the paid-in surplus and retained
earnings (or minus the net surplus deficit, as the case may be), (d) deferred
taxes and deferred investment tax credits, (e) Capitalized Rent and (f) minority
interests in Subsidiaries.
39
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 part of the Principal Amount at Maturity,
Issue Price, including accrued Original Issue Discount or Redemption Price on
the Notes as and when the same shall 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 Notes the whole amount that then shall have become due and payable on all
the Notes (with interest to the date of such payment upon the overdue amounts,
at the same rate as the yield to maturity on the Notes); 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 make payments in respect of the Notes to the Holders, whether or not
the Notes are 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
the Guarantor upon the Notes and collect in the manner provided by law out of
the property of the Issuer or the Guarantor upon the Notes, wherever situated
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings
relative to the Issuer or the Guarantor upon the Notes 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
40
possession of the Issuer or its property or the Guarantor or its property, or in
case of any other comparable judicial proceedings relative to the Issuer or the
Guarantor, or to the creditors or property of the Issuer or the Guarantor, the
Trustee, irrespective of whether the Principal Amount at Maturity, Issue Price,
accrued Original Issue Discount or Redemption Price of the Notes 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
amount of the Issue Price on the Notes then Outstanding and the
Original Issue Discount accrued thereon owing and unpaid in respect of
such Notes, 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 Noteholders allowed
in any judicial proceedings relative to the Issuer or the Guarantor or
to the creditors or property of the Issuer or the Guarantor.
(b) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of the Notes 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 Noteholders and
of the Trustee on their behalf; and any trustee, receiver, liquidator,
custodian or other similar official is hereby authorized by each of the
Noteholders to make payments to the Trustee, and, in the event that the
Trustee
41
shall consent to the making of payments directly to the Noteholders, 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 Notes 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 the Notes, may be enforced by the Trustee without the
possession of any of the Notes 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 Notes.
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 Notes, and it shall not be necessary to make
any Holders of the Notes 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 Notes 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 upon presentation of the Notes in
respect of which moneys have been collected and stamping (or otherwise noting)
thereon the payment, or issuing Notes
42
in reduced Principal Amounts at Maturity in exchange for the presented Notes 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: To the payment of the whole amount then
owing and unpaid upon the Notes for Principal Amount at Maturity, Issue
Price, accrued Original Issue Discount or Redemption Price, with
interest upon the overdue amounts at the same rate as the yield to
maturity on the Notes; and in case such moneys shall be insufficient to
pay in full the whole amount so due and unpaid upon the Notes, then to
the payment of such amount without preference or priority, ratably to
the aggregate of such amount; and
THIRD: 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,
43
and in every such case, the Issuer, the Guarantor and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Guarantor, the Trustee and the
Noteholders shall continue as though no such proceedings had been taken.
SECTION 5.6 Limitations on Suits by Noteholders.
No Holder of the Notes 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 at Maturity of the Notes 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 Note with every other taker and Holder and the
Trustee, that no one or more Holders of the Notes 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 the Notes, 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 the Notes. For
the protection and enforcement of the provisions of this Section, each and every
Noteholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
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SECTION 5.7 Unconditional Right of Noteholders to
Institute Certain Suits. Notwithstanding any other provision in this Indenture
and any provision of the Notes, the right of any Holder of the Notes to receive
payments in respect of such Notes on or after the due dates for such payments,
or to institute suit for the enforcement of any such payment on or after such
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 2.6 and subject to Section 5.6, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders of the Notes 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 the Notes 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 the Notes may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders of the Notes.
SECTION 5.9 Control by Holders of the Notes. The
Holders of a majority in aggregate Principal Amount at Maturity of the
Outstanding Notes 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 Notes 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
45
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 Notes 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 Noteholders.
SECTION 5.10 Waiver of Past Defaults. Prior to
the declaration of acceleration of the maturity of the Notes as provided in
Section 5.1, the Holders of a majority in aggregate Principal Amount at Maturity
of the Outstanding Notes may on behalf of all the Holders waive any past default
or Event of Default and its consequences with respect to the Notes, as described
in Section 5.1, except a default or an Event of Default in respect of a covenant
or provision hereof or of the Notes which cannot be modified or amended without
the consent of the Holder of each Note. In the case of any such waiver, the
Issuer, the Guarantor, the Trustee and the Holders of all the Notes 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
46
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 Notes, give notice of all
such defaults known to the Trustee to all the Holders of the Notes 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 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 described in Section
5.1(a), 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
Noteholders.
SECTION 5.12 Right of Court to Require Filing of
Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder
of the Notes 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 Noteholder or group of Noteholders
holding in the aggregate more than 10% in aggregate Principal Amount at Maturity
of the Notes, or to any suit instituted by any Noteholder for the enforcement of
the payment of the Principal Amount at Maturity, Issue Price, accrued Original
Issue Discount or Redemption Price of the Notes when the same shall become due
and payable.
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ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the
Trustee; During Default; Prior to Default. The Trustee, prior to the occurrence
of an Event of Default with respect to the Notes and after the curing or waiving
of all Events of Default which may have occurred with respect to the Notes,
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 Notes
has occurred (which has not been cured or waived), the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of
Default with respect to the Notes and after the curing or waiving of
all such Events of Default which may have occurred with respect to the
Notes:
(i) the duties and obligations of
the Trustee with respect to the Notes 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
48
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the
case of any such statements, certificates or
opinions which by any provision hereof are
specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not
they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with an appropriate direction of the Holders pursuant to
Section 5.9 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or 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;
49
(b) any request, direction, order or demand of
the Issuer or the Guarantor 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 of either the Issuer or the Guarantor may be
evidenced to the Trustee by a copy thereof certified by the secretary
or an assistant secretary of the Issuer or the Guarantor, as
applicable;
(c) the Trustee may consult with counsel and any
written advice or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this Indenture at
the request, order or direction of any of the Holders pursuant to the
provisions of this Indenture, unless such Holders shall have offered to
the Trustee reasonable indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any
action taken or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it
by this Indenture;
(f) prior to the occurrence of an Event of
Default with respect to the Notes 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 at Maturity of the then Outstanding Notes;
50
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 the Notes or Application of Proceeds Thereof. The recitals
contained herein and in the Notes, 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
Notes. The Trustee shall not be accountable for the use or application by the
Issuer of the Notes or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Notes;
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 the Notes
with the same rights it would have if it were not the Trustee or such agent and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the Issuer with the same
rights it would have if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to
the provisions of Section 10.4, all moneys received by the
51
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 Notes 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
the Notes, and the Notes are hereby subordinated to such senior claim. The
Company's payment obligations pursuant to this Section 6.6 shall survive the
discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of an Event of Default specified in Section 5.1(e) or (f), the
expenses are
52
intended to constitute expenses of administration under any Bankruptcy Law.
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 is herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee, and
such certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture in reliance thereon.
SECTION 6.8 Qualification of Trustee; Conflicting
Interests. (a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, it shall, within 90 days after ascertaining that it has
such conflicting interest, either eliminate such conflicting interest or resign
in the manner and with the effect specified in this Article.
(b) In the event that the Trustee shall fail to
comply with the provisions of subsection (a) of this Section, the Trustee shall,
within 10 days after the expiration of such 90 day period, transmit by mail
notice of such failure to the Noteholders in the manner and to the extent
required by Section 4.4(c).
(c) For the purposes of this Section, the Trustee
shall be deemed to have a conflicting interest with respect to the Notes if:
(i) the Trustee is a trustee under
another indenture under which any other
securities, or certificates of interest or
participation in any other securities, of the
Issuer or the Guarantor are outstanding,
unless such other indenture is a collateral
trust indenture under which the only
53
collateral consists of the Notes issued under
this Indenture; provided that there shall be
excluded from the operation of this paragraph
such other indenture or indentures under which
other securities, or certificates of interest
or participation in other securities, of the
Issuer or the Guarantor are outstanding, if
(1) this Indenture and such other
indenture or indentures are wholly unsecured
and such other indenture or indentures are
hereafter qualified under the Trust Indenture
Act of 1939, unless the SEC shall have found
and declared by order pursuant to Section
305(b) or Section 307(c) of the Trust
Indenture Act of 1939 that differences exist
between the provisions of this Indenture and
the provisions of such other indenture or
indentures, as applicable, which are so likely
to involve a material conflict of interest as
to make it necessary in the public interest or
for the protection of investors to disqualify
the Trustee from acting as such under this
Indenture and such other indenture or
indentures, or
(2) the Issuer shall have sustained
the burden of proving, on application to the
SEC and after opportunity for hearing thereon,
that trusteeship under this Indenture and such
other indenture or indentures, is not so
likely to involve a material conflict of
interest as to make it necessary in the public
interest or for the protection of investors to
disqualify the Trustee from acting as such
under this Indenture and such other indenture
or indentures;
(ii) the Trustee or any of its directors or
executive officers is an obligor upon the Notes issued
under this Indenture or an underwriter for the Issuer
or the Guarantor;
(iii) the Trustee directly or indirectly controls
or is directly or indirectly controlled by or is under
direct or indirect common control with the Issuer or
the Guarantor or an underwriter for the Issuer;
54
(iv) the Trustee or any of its directors or
executive officers is a director, officer, partner, employee, appointee
or representative of the Issuer, or of an underwriter (other than the
Trustee itself) for the Issuer or the Guarantor who is currently
engaged in the business of underwriting, except that (x) one individual
may be a director or an executive officer, or both, of the Trustee and
a director or an executive officer, or both, of the Issuer or the
Guarantor, but may not be at the same time an executive officer of both
the Trustee and the Issuer; (y) if and so long as the number of
directors of the Trustee in office is more than nine, one additional
individual may be a director or an executive officer, or both, of the
Trustee and a director of the Issuer; and (z) the Trustee may be
designated by the Issuer or by any underwriter for the Issuer to act in
the capacity of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent or depositary, or in any other similar
capacity, or, subject to the provisions of (c)(i) of this Section, to
act as trustee, whether under an indenture or otherwise;
(v) 10% or more of the voting securities of the
Trustee is beneficially owned either by the Issuer or by any director,
partner or executive officer thereof, or 20% or more of such voting
securities is beneficially owned, collectively, by any two or more of
such persons; or 10% or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Issuer or by any
director, partner or executive officer thereof, or is beneficially
owned, collectively, by any two or more such persons;
(vi) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in default, (x)
5% or more of the voting securities, or 10% or more of any other class
of security of the Issuer, not including the Notes issued under this
Indenture and securities issued under any other indenture under which
the Trustee is also trustee, or (y) 10% or more of any class of
security of an underwriter for the Issuer;
55
(vii) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in default, 5%
or more of the voting securities of any person who, to the knowledge of
the Trustee, owns 10% or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect common control
with, the Issuer;
(viii) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in default, 10%
or more of any class of security of any person who, to the knowledge of
the Trustee, owns 50% or more of the voting securities of the Issuer;
or
(ix) the Trustee owns on May 1 in any calendar
year, in the capacity of executor, administrator, testamentary or inter
vivos trustee, guardian, committee or conservator, or in any other
similar capacity, an aggregate of 25% or more of the voting securities,
or of any class of security, of any person, the beneficial ownership of
a specified percentage of which would have constituted a conflicting
interest under clause (vi), (vii) or (viii) of this subsection. As to
any such securities of which the Trustee acquired ownership through
becoming executor, administrator or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall not
apply, for a period of two years from the date of such acquisition, to
the extent that such securities included in such estate do not exceed
25% of such voting securities or 25% of any such class of security.
Promptly after May 1 in each calendar year, the Trustee shall make a
check of its holdings of such securities in any of the above-mentioned
capacities as of such May 1. If the Issuer fails to make payment in
full of principal of or interest on any of the Notes when and as the
same becomes due and payable, and such failure continues for 30 days
thereafter, the Trustee shall make a prompt check of its holdings of
such securities in any of the above-mentioned capacities as of the date
of the expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph, all such
securities so held by the Trustee, with sole or joint control over such
securities vested
56
in it, shall, but only so long as such failure shall continue, be
considered as though beneficially owned by the Trustee for the purposes
of clauses (vi), (vii) and (viii) of this subsection.
The specification of percentages in clauses (v) to
(ix), inclusive, of this subsection shall not be construed as indicating that
the ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of clause (iii) or (vii) of this subsection.
For the purposes of clauses (vi), (vii), (viii)
and (ix) of this subsection only,
(i) the terms "security" and "securities" shall
include only such securities as are generally known as corporate
securities, but shall not include any note or other evidence of
indebtedness issued to evidence an obligation to repay moneys lent to a
person by one or more banks, trust companies or banking firms, or any
certificate of interest or participation in any such note or evidence
of indebtedness;
(ii) an obligation shall be deemed to be "in
default" when a default in payment of principal or interest shall have
continued for 30 days or more and shall not have been cured; and
(iii) the Trustee shall not be deemed to be the
owner or holder of (x) any security which it holds as collateral
security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (ii) above, or (y) any security which it
holds as collateral security under this Indenture, irrespective of any
default hereunder, or (z) any security which it holds as agent for
collection, or as custodian, escrow agent or depositary, or in any
similar representative capacity.
Except as provided above, the word "security" or
"securities," as used in this Section, shall mean any note, stock, treasury
stock, bond, debenture, evidence of indebtedness, certificate of interest or
participation in
57
any profit-sharing agreement, collateral trust certificate, preorganization
certificate or subscription, transferable share, investment contract, voting
trust certificate, certificate of deposit for a security, fractional undivided
interest in oil, gas or other mineral rights or, in general, any interest or
instrument commonly known as a "security," or any certificate of interest or
participation in, temporary or interim certificate for, receipt for, guarantee
of, or warrant or right to subscribe to or purchase, any of the foregoing.
(d) For purposes of this Section:
(i) the term "underwriter," when used with
reference to the Issuer, shall mean every person who, within three
years prior to the time as of which the determination is made, has
purchased from the Issuer with a view to, or has offered or sold for
the Issuer in connection with, the distribution of any security of the
Issuer outstanding at such time, or has participated or has had a
direct or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include a
person whose interest was limited to a commission from an underwriter
or dealer not in excess of the usual and customary distributors' or
sellers' commission;
(ii) the term "director" shall mean any director
of a corporation or any individual performing similar
functions with respect to any organization, whether
incorporated or unincorporated;
(iii) the term "person" shall mean an individual,
a corporation, a partnership, an association, a joint-stock company, a
trust, an unincorporated organization or a government or political
subdivision thereof; as used in this clause, the term "trust" shall
include only a trust where the interest or interests of the beneficiary
or beneficiaries are evidenced by a security;
58
(iv) the term "voting security" shall mean any
security presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any security
issued under or pursuant to any trust, agreement or arrangement whereby
a trustee or trustees or agent or agents for the owner or holder of
such security are presently entitled to vote in the direction or
management of the affairs of a person;
(v) the term "Issuer" shall mean any obligor upon
the Notes; and
(vi) the term "executive officer" shall mean the
president, every vice president, every trust officer, the cashier, the
secretary and the treasurer of a corporation, and any individual
customarily performing similar functions with respect to any
organization, whether incorporated or unincorporated, but shall not
include the chairman of the board of directors.
(e) The percentages of voting securities and
other securities specified in this Section shall be calculated in accordance
with the following provisions:
(i) a specified percentage of the voting
securities of the Trustee, the Issuer or any other person referred to
in this Section (each of whom is referred to as a "person" in this
subsection) means such amount of the outstanding voting securities of
such person as entitles the holder or holders thereof to cast such
specified percentage of the aggregate votes which the holders of all
the outstanding voting securities of such person are entitled to cast
in the direction or management of the affairs of such person;
(ii) a specified percentage of a class of
securities of a person means such percentage of the
aggregate amount of securities of the class
outstanding;
(iii) the term "amount," when used in regard to
securities, means the principal amount if relating to
evidences of indebtedness, the number of shares if
59
relating to capital shares and the number of units if
relating to any other kind of security;
(iv) the term "outstanding" means issued and not
held by or for the account of the issuer; the following securities
shall not be deemed outstanding within the meaning of this definition:
(A) securities of an issuer held in a
sinking fund relating to securities of the issuer
of the same class;
(B) securities of an issuer held in
a sinking fund relating to another class of
securities of the issuer, if the obligation
evidenced by such other class of securities is
not in default as to principal or interest or
otherwise;
(C) securities pledged by the issuer thereof
security for an obligation of the issuer not in
default as to principal or interest or otherwise;
and
(D) securities held in escrow if placed in
escrow by the issuer thereof;
provided that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise
the voting rights thereof; and
(v) a security shall be deemed to be of the same
class as another security if both securities confer upon the holder or
holders thereof substantially the same rights and privileges; provided
that, in the case of secured evidences of indebtedness, all of which
are issued under a single indenture, differences in the interest rates
or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient
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to constitute them securities of different classes, whether or not they
are issued under a single indenture.
SECTION 6.9 Persons Eligible for Appointment as
Trustee. There shall at all times be a Trustee hereunder 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 by giving written notice of resignation to the
Issuer and by mailing notice of such resignation to the Holders of the then
Outstanding Notes at their addresses as they shall appear on the register of the
Registrar. Upon receiving such notice of resignation, the Issuer shall promptly
appoint a successor trustee or trustees with respect to the applicable series by
written instrument, in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no successor
trustee shall have been so appointed 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 Note for
at least six months may, subject to the provisions of Section 5.12, on behalf of
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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, 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 after written request therefor by the Issuer
or by any Holder who has been a bona fide Holder of a Note 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 Notes and such removal
does not adversely affect the interests of any Holder of the Notes;
then, in any such case, the Issuer may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee or trustees, or,
subject to the provisions of Section 5.12, any Holder who has been a bona fide
Holder of a Note 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
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appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper, remove the Trustee and appoint a successor
trustee.
(c) Any resignation or removal of the Trustee and
any appointment of a successor trustee 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 shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all rights, powers, trusts and duties of its predecessor
hereunder, with like effect as if originally named as trustee 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 the Notes to secure any amounts
then due it pursuant to the provisions of Section 6.6.
No successor trustee 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.
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Upon acceptance of appointment by any successor
trustee as provided in this Section, the Issuer shall give notice thereof to the
Holders of the Notes by mailing such notice to such Holders at their addresses
as they shall appear on the register of the Registrar. 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
a 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 Notes
shall have been authenticated but not delivered, any such successor trustee may
adopt the certificate of authentication of any predecessor trustee and deliver
the Notes so authenticated; and, in case at that time any of the Notes shall not
have been authenticated, any successor trustee may authenticate such Notes
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 Notes 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
the Notes in the name of any predecessor trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
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SECTION 6.13 Preferential Collection of Claims
Against the Issuer. (a) Subject to the provisions of this Section, if the
Trustee shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Issuer within four months prior to a default, as defined in
subsection (c) of this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in a
special account for the benefit of the Trustee individually, the Holders of the
Notes 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, effected after the beginning of such four
months' period and valid as against the Issuer and its other creditors,
except any such reduction resulting from the receipt or disposition of
any property described in clause (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Issuer
upon the date of such default; and
(2) all property received by the Trustee in
respect of any claim as such creditor, either as security therefor, or
in satisfaction or composition thereof, or otherwise, after the
beginning of such four months' period, or an amount equal to the
proceeds of any such property if disposed of, subject, however, to the
rights, if any, of the Issuer and its other creditors in such property
or such proceeds.
Nothing herein contained, however, shall affect
the right of the Trustee:
(A) to retain for its own account (i) payments
made on account of any such claim by any person (other than the Issuer)
who is liable thereon, (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third person, and (iii) distributions
made in cash, securities or other property in respect of claims filed
against the Issuer in bankruptcy or receivership or in proceedings for
reorganization
65
pursuant to Title 11 of the United States Code or
applicable state law;
(B) to realize, for its own account, upon any
property held by it as security for any such claim, if such property
was so held prior to the beginning of such four months' period;
(C) to realize, for its own account, but only to
the extent of the claim hereinafter mentioned, upon any property held
by it as security for any such claim, if such claim was created after
the beginning of such four months' period and such property was
received as security therefor simultaneously with the creation thereof,
and if the Trustee shall sustain the burden of proving that at the time
such property was so received the Trustee had no reasonable cause to
believe that a default as defined in subsection (c) of this Section
would occur within four months; or
(D) to receive payment on any claim referred to
in clause (B) or (C) of this subsection, against the release of any
property held as security for such claim as provided in such clause (B)
or (C), as the case may be, to the extent of the fair value of such
property,
For the purposes of clauses (B), (C) and (D),
property substituted after the beginning of such four months period for property
held as security at the time of such substitution shall to the extent of the
fair value of the property released, have the same status as the property
released, and, to the extent that any claim referred to in any of such clauses
is created in renewal of or in substitution for or for the purpose of repaying
or refunding any pre-existing claim of the Trustee as such creditor, such claim
shall have the same status as such preexisting claim.
If the Trustee shall be required to account, the
fund and property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of other indenture
securities in such manner that the Trustee, the Holders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on
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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.
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Any Trustee who has resigned or been removed after
the beginning of such four-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 four-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 such
Trustee had continued as trustee, occurred after the beginning of such
four-months' period; and
(ii) such receipt of property or reduction of
claim occurred within four months after such
resignation or removal.
(b) There shall be excluded from the operation of
this Section a creditor relationship arising from:
(1) ownership or acquisition of securities issued
under any indenture or any security or securities
having a maturity of one year or more at the time of
acquisition by the Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this Indenture for the
purpose of preserving any property which shall at any time be subject
to the lien of this Indenture or of discharging tax liens or other
prior liens or encumbrances thereon, if notice of such advance and of
the circumstances surrounding the making thereof is given to the
Noteholders 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
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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 or interest in respect of the
Notes when such payment becomes due and payable or principal and
interest upon the other indenture securities when and as such principal
or interest becomes due and payable;
(2) the term "other indenture securities" shall
mean securities upon which the Issuer is an obligor (as defined in the
Trust Indenture Act of 1939) outstanding under any other indenture (i)
under which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section and (iii) under which a default exists at the time of the
apportionment of the funds and property held in said special account;
(3) the term "cash transaction" shall mean any
transaction in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities in currency
or in checks or other orders drawn upon banks or bankers and payable
upon demand;
(4) the term "self-liquidating paper" shall mean
any draft, xxxx of exchange, acceptance or obligation
69
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, xxxx of exchange, acceptance or obligation; and
(5) the term "Issuer" shall mean any obligor upon
the Notes.
SECTION 6.14 Appointment of Authenticating Agent.
As long as any Note remains 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 Notes including Notes
issued upon exchange, registration of transfer, partial redemption or pursuant
to Section 2.6. Notes 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 the Indenture to the
authentication and delivery of Notes by the Trustee or to the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
for such series and a certificate of authentication executed on behalf of the
Trustee by such Authenticating Agent. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the United
States of America or of any State thereof or of the District of Columbia
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000 (determined as provided in Section
6.9 with respect to the Trustee) and subject to supervision or examination by
Federal or State authority.
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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 part 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 the Notes 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 the Holders of the Notes in the manner and to the extent
provided in Section 6.11 with respect to the appointment of a successor trustee.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
Sections 6.2, 6.3, 6.4, 6.6 (except for the last
sentence thereof) and 7.3 shall be applicable to any Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE NOTEHOLDERS
SECTION 7.1 Evidence of Action Taken by Noteholders. 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 at Maturity of the Holders of the
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Notes 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 Notes. 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 Note
shall be sufficient if the ownership of the Notes is proved by the register
maintained by the Registrar pursuant to Section 2.3 or by a certificate of the
Registrar.
SECTION 7.3 Holders to be Treated as Owners. The
Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or
the Trustee may deem and treat the Person in whose name any Note shall be
registered upon the register maintained by the Registrar pursuant to Section 2.3
as the absolute owner of such Note (whether or not such Note shall be overdue
and notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payments of or on account of the Note and for all other
purposes; and none of the Issuer, the Guarantor, the Trustee and any agent of
the Issuer, the Guarantor 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 Note.
SECTION 7.4 Notes Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
Principal Amount at Maturity of Outstanding Notes have concurred in any
direction, consent or waiver under this Indenture, Notes which are owned by the
Issuer, the Guarantor or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer or the
Guarantor
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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 relying on any such direction, consent or waiver,
only Notes which the Trustee knows are so owned shall be so disregarded. Notes
so owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Notes and that the pledgee is not the Issuer or
the Guarantor upon such Notes or any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer or
the Guarantor. 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 Notes, 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 Notes 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 at Maturity of the Notes specified in
this Indenture in connection with such action, any Holder of a Note the serial
number of which is shown by the evidence to be included among the serial numbers
of the Notes 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 Note. Except
as aforesaid, any such action taken by the Holder of a Note shall be conclusive
and binding upon such Holder and upon all future Holders and owners of such Note
and of any Notes 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
73
Note. Any action taken by the Holders of the requisite percentage in aggregate
Principal Amount at Maturity of the Notes specified in this Indenture in
connection with such action shall be conclusively binding upon the Issuer, the
Guarantor, the Trustee and the Holders of all the Notes.
The Issuer may, but shall not be obligated to, fix
a record date for the purpose of determining the Noteholders 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 Notes at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to give such consent or to
revoke any consent previously given or to take any such action with respect to
such Notes, 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 Noteholders. The Issuer and the Guarantor, when authorized by a
resolution of their respective Boards 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 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 Notes any property or assets;
(b) to add guarantees with respect to the Notes;
(c) to evidence the succession of another
corporation to the Issuer or the Guarantor, or
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successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Issuer or the
Guarantor, as applicable pursuant to Article Nine;
(d) to add to the covenants of the Issuer or the
Guarantor such further covenants, restrictions, conditions or
provisions as the Issuer, the Guarantor and the Trustee shall consider
to be for the protection of the Holders of the Notes, and to make the
occurrence, or the occurrence and continuance, of a default in
complying with any such additional covenant, restriction, condition or
provision an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture as herein set forth;
in respect of any such additional covenant, restriction, condition or
provision, such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate Principal
Amount at Maturity of the Notes to waive such an Event of Default;
(e) to cure any ambiguity, defect, omission or
inconsistency 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
or the Guarantor may deem necessary or desirable, provided that no such
action shall adversely affect the interests of the Holders of the
Notes;
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee, as
provided in Section 6.11; and
(g) to provide for uncertificated Notes in
addition to or in place of certificated Notes;
provided, however, that the uncertificated Notes are
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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 Notes are described in Section 163(f)(2)(B) of the
Internal Revenue Code of 1986, as amended.
The Trustee is hereby authorized to join with the
Issuer and the Guarantor in the execution of any such supplemental indenture, to
make any further appropriate agreements and stipulations which may be therein
contained and to accept the conveyance, transfer, assignment, mortgage or pledge
of any property or assets thereunder, but the Trustee shall not be obligated to
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the
provisions of this Section may be executed without the consent of the Holders of
the Notes at the time Outstanding, notwithstanding any of the provisions of
Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent
of the Noteholders. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than a majority in aggregate Principal Amount at
Maturity of the Outstanding Notes affected by such supplemental indenture, the
Issuer and the Guarantor, when authorized by a resolution of their respective
Boards 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 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 manner the rights of the Holders of
the Notes; provided that no such supplemental indenture shall, without the
consent of each Holder affected thereby (a) reduce the Principal Amount at
Maturity, the Issue Price or the Redemption Price with respect to any Note, the
amount thereof that would be due and payable upon an acceleration of the
maturity of the Notes pursuant to Section 5.1, or the
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amount thereof provable in bankruptcy pursuant to Section 5.2, or extend the
maturity of any Note, or alter the manner or rate of accrual of Original Issue
Discount, or make any Note payable in money or securities other than that stated
in the Note; (b) reduce the percentage in Principal Amount at Maturity of the
Outstanding Notes whose Holders must consent to any such supplemental indenture
or any waiver provided for in this Indenture; or (c) impair the right to
institute suit for the enforcement of any payment with respect to the Notes.
Upon the request of the Issuer and the Guarantor,
accompanied by a Board Resolution from each of the Issuer and the Guarantor
complying with the first paragraph of this Section and evidence of the consent
of the Holders of the Notes as aforesaid and such other documents, if any, as
may be required by Section 7.1, the Trustee shall join with the Issuer and the
Guarantor 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, the
Guarantor 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 Notes, by mailing a notice thereof by first-class
mail to such Holders at their addresses as they shall appear on the register of
the Registrar. Any failure of the Trustee 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
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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, the Guarantor and the Holders of the Notes 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
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 provision of this Indenture.
SECTION 8.5 Notation on Notes in Respect of
Supplemental Indentures. Notes of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation form approved by the Trustee as to any matter
provided for by such supplemental indenture. If a supplemental indenture changes
the terms of a Note, the Trustee may require the Holder of such Note to deliver
it to the Trustee, and the Trustee may place an appropriate notation on the Note
regarding the changed terms and return it to such Holder. A failure to make any
such notation shall not, however, in any way impair or affect the validity of
any such supplemental indenture or any such Note the terms of which are changed.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Guarantor and the
Issuer Not to Merge, Consolidate, Sell or Convey Property Except Under Certain
Conditions. Neither the Guarantor nor the Issuer shall consolidate with, or
merge with or into, any other Person or Persons (whether or not affiliated with
the Guarantor or the Issuer), or be a party to successive
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consolidations or mergers to which the Guarantor or the Issuer, as the case may
be, or its successor or successors shall be a party or parties, or sell, lease
or convey the property of the Guarantor or the Issuer as an entirety or
substantially as an entirety, unless (and in the case of the Issuer, subject to
the provisions of Section 3.8): (a) upon any such consolidation, merger, sale,
lease or conveyance, the due and punctual payment of the Principal Amount at
Maturity, Issue Price, accrued Original Issue Discount and Redemption Price on
all the Notes, and the due and punctual performance and observance of all of the
covenants, conditions and other obligations of this Indenture and the Notes to
be performed or observed by the Guarantor or the Issuer, as the case may be,
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 Guarantor or the Issuer, as the case may be,
shall have been merged, or which shall have acquired such property (the
"Successor Company"); (b) the Successor Company 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 nation in Western Europe or of any
political subdivision of any thereof and such Person undertakes to pay to the
Holders of the Notes any additional amounts as may be necessary in order that
every net payment of Principal Amount at Maturity, Issue Price, accrued Original
Issue Discount and Redemption Price on the Notes, 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 a Person 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 Notes to be then due and payable; (c) immediately
after giving effect to such transaction (and treating any Secured Debt or Sale
and Leaseback Transaction which becomes an obligation of the Successor Company
as a result of such transaction as having been incurred or entered into by the
Successor Company at the time of such transaction), no Event
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of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and (d) in
the case of any such transaction with respect to the Issuer, the Guarantor
consents to such transaction and reaffirms the Guarantee.
SECTION 9.2 Notes to be Secured in Certain
Events. If, upon any such consolidation or merger of the Guarantor or the Issuer
or upon any such sale, lease or conveyance of the property of the Guarantor or
the Issuer as an entirety or substantially as an entirety to any other Person,
any property owned by the Guarantor 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 Guarantor without its being required by the
provisions of Section 3.6 to secure the Notes equally and ratably with (or prior
to) such Secured Debt), the Guarantor, prior to any such consolidation, merger,
sale, lease or conveyance, will by indenture supplemental hereto secure the
Notes (together with, if the Guarantor shall so determine, any other Debt
incurred, assumed or guaranteed by the Guarantor ranking equally with, or prior
to, the Guarantee, whether then existing or thereafter created) by direct Lien
on such property, prior to all Liens other than any theretofore existing
thereon.
SECTION 9.3 Successor Company Substituted. In
case of any consolidation, merger, sale, lease or conveyance referred to in
Section 9.1, and following such an assumption by the Successor Company, such
Successor Company shall succeed to and be substituted for the Guarantor or the
Issuer, as the case may be, with the same effect as if it had been named herein.
Such Successor Company may cause to be signed, and
may issue either in its own name or in the name of the Guarantor or the Issuer,
as the case may be, prior to such succession, any or all of the Notes issuable
hereunder which theretofore shall not have been signed by the Guarantor or the
Issuer, as the case may be, and delivered to the Trustee; and, upon the order of
such Successor Company, instead of the Guarantor or the Issuer, as the case may
be, and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate
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and shall deliver any Notes which previously shall have been signed and
delivered by the officers of the Guarantor or the Issuer, as the case may be, to
the Trustee for authentication, and any Notes which such Successor Company
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Notes so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Notes theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Notes 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 Notes 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 Guarantor or the Issuer or any Successor
Company 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 Notes and may be liquidated and dissolved.
SECTION 9.4 Officers' Certificate and Opinion of
Counsel Delivered to Trustee. The Trustee, subject to the provisions of Sections
6.1 and 6.2, may receive an Officers' Certificate and an Opinion of Counsel each
stating that any such consolidation, merger, sale, lease or conveyance, that any
such assumption, that any such supplemental indenture and that any such
liquidation or dissolution, complies with the applicable provisions of this
Indenture.
ARTICLE 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 Amount at Maturity
due and payable in respect of all the Notes theretofore
authenticated (other than Notes which have been destroyed,
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lost or stolen and which have been replaced or paid as
provided in Section 2.6), in accordance with the terms of
this Indenture and such Notes or (b) as to Notes not so
paid, the Issuer shall have delivered to the Trustee for
cancellation all the Notes theretofore authenticated (other
than any Notes which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as
provided in Section 2.6) or (c) as to Notes not so paid or
delivered for cancellation, (i) all the Notes 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
Amount at Maturity on all the Notes; 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 the Notes and the Issuer's right
of optional redemption, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Notes, (iii) the rights
of Holders of the Notes to receive payments thereon upon the
original stated due dates therefor (but not upon
acceleration), (iv) the rights, obligations, duties and
immunities of the Trustee hereunder, (v) the rights of
Holders of the Notes 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 clauses (a) and (b)
of Section 9.1 and (vii) this Article 10 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
Notes to receive amounts in respect of the Principal Amount
at Maturity or redemption, as the case may be, on the Notes
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 Notes are listed. The
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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 Notes.
(B) In addition to discharge of this Indenture
pursuant to the next preceding paragraph (A), the Issuer shall be deemed to have
paid and discharged the entire indebtedness on all the Notes on the 123rd day
after the date of the deposit referred to in subparagraph (a) below, and the
provisions of this Indenture with respect to the Notes shall, subject to Section
10.6, no longer be in effect (except as to (i) rights of registration of
transfer and exchange of the Notes and the Issuer's right of optional
redemption, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Notes, (iii) the rights of Holders of the Notes to receive payments thereon upon
the original stated due dates therefor (but not upon acceleration), solely from
the trust fund referred to in subparagraph (a) below, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v) the rights of
Holders of the Notes as beneficiaries hereof with respect to the property so
deposited with the Trustee and payable to all or any of them, (vi) the
respective obligations of the Issuer under Sections 3.2, 3.3, 3.4, 4.1 and 9.3
and clauses (a) and (b) of Section 9.1 and (vii) this Article 10 pertinent to
such continuing obligations); and the Trustee, at the cost and expense of the
Issuer, shall, at the Issuer's request, execute proper instruments acknowledging
the same, if:
(a) the Issuer shall have irrevocably deposited
or caused to be irrevocably deposited with the Trustee as a trust fund
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Notes (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 the
Principal Amount at Maturity on all the Notes on each date that such
amount is due and payable;
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(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 Notes 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 123rd 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 either the
Issuer or the Guarantor is a party or by which either is bound;
(d) the Issuer shall have delivered to the
Trustee an Opinion of Counsel (which counsel, for the purpose of clause
(ii), shall be counsel selected by the Issuer with national recognition
in matters of federal income tax law) to the effect that (i) such
deposit shall not result in the Issuer, the Guarantor, the Trustee or
such trust constituting an "investment company" under the Investment
Company Act of 1940, as amended, and (ii) either (A) there has been a
change in the applicable Federal income tax law or (B) the Issuer has
received from, or there has been published by, the Internal Revenue
Service a ruling to the effect that, and in any such case referred to
in clause (A) or (B) such Opinion of Counsel shall confirm that based
thereon, the Holders of the Notes then Outstanding 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
(e) 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.
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(C) The Issuer and the Guarantor shall be
released from their respective obligations under Sections 3.5, 3.6, 3.7, 3.8 and
3.9 and Article Nine (other than clauses (a), (b) and (d) of Section 9.1 with
respect to the Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"). Covenant defeasance means that,
with respect to the Outstanding Notes, the Issuer and the Guarantor may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in Sections 3.5, 3.6, 3.7, 3.8 and 3.9 and Article Nine
(other than Section 9.1(a), (b) and (d)), 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 Notes, but the remainder of
this Indenture 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 Notes, (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 the
Principal Amount at Maturity on all the Notes on each date that such
amount is due and payable;
(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 Notes 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 123rd day after
the date of such deposit (it being
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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 either the
Issuer or the Guarantor is a party or by which either is bound;
(d) the Issuer shall have delivered to the
Trustee an Opinion of Counsel (which counsel, for the purpose of clause
(ii), shall be counsel selected by the Issuer with national recognition
in matters of federal income tax law) to the effect that (i) such
deposit shall not result in the Issuer, the Guarantor, the Trustee or
such trust constituting an "investment company" under the Investment
Company Act of 1940, as amended, and (ii) the Holders of the Notes then
Outstanding 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
(e) 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 Notes. Subject to Section 10.4, all moneys deposited
with the Trustee pursuant to Section 10.1 in respect of the Outstanding Notes
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 the Notes of all sums due and to become due thereon for the
Principal Amount at Maturity, 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
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this Indenture with respect to the Notes, all moneys then held by any Paying
Agent under the provisions of the Indenture 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 any amount on any Note and not
applied but remaining unclaimed for two years after the date upon which such
amount 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 Notes 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,
shall at the expense of the Issuer, mail by first-class mail to Holders of such
Notes at their addresses as they shall appear on the register of the Registrar,
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, any unclaimed
balance of such moneys then remaining will be repaid to the Issuer.
SECTION 10.5 Indemnity for Government
Obligations. The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 10.1 or the principal or interest received in
respect of such Government Obligations, other than any such tax, fee or other
charge which by law is for the account of the Holders of the Notes for whose
benefit such Government Obligations are held.
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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 and the Guarantor's
obligations under this Indenture and the Notes 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 or the Guarantor has made any payment of principal in respect of any
Notes because of the reinstatement of its obligations, the Issuer or the
Guarantor, as applicable, 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 Notes 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 and Guarantor Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement contained in
this Indenture, or in the Notes, 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
the Guarantor or of any successor, either directly or through the Issuer or the
Guarantor 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 Notes by the Holders thereof and as part of the
consideration for the issue of the Notes.
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SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and Holders of Notes. Nothing in this Indenture or in the
Notes, 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 Notes, 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 Notes.
SECTION 11.3 Successors and Assigns of Issuer or
Guarantor Bound by Indenture. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the Issuer or the
Guarantor, as the case may be, shall bind any successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Issuer, the
Guarantor, Trustee and Holders of Notes. 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 Notes to or upon the Issuer or the Guarantor 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 or the Guarantor is
filed by the Issuer or the Guarantor with the Trustee) to American Portable
Telecom, Inc., 0000 Xxxx Xxxx Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000-0000, Attention: Chief Financial Officer, and to Telephone and Data
Systems, Inc., Suite 4000, 00 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Treasurer. Any notice, direction, request or demand by the Issuer or
the Guarantor or any Holder of Notes to or upon the Trustee may be given or
served in person or by being deposited postage prepaid in the United States
mail, first-class mail (except as otherwise specifically provided herein),
addressed (until another address of the Trustee is filed by the Trustee with the
Issuer) to The First National Bank of Chicago, Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, XX 00000, Attention: Corporate Trust Office. Any notice required
or permitted to be given or served by the Issuer, the Guarantor or by the
Trustee to or upon any Holders of Notes, may be given or
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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 register of the Registrar.
In any case where notice to the Noteholders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or
irregularities in regular mail service, it shall be impracticable to mail notice
to the Issuer when such notice is required to be given pursuant to any provision
of this Indenture, then any manner of giving 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 or the Guarantor to the Trustee to take any action under any of
the provisions of this Indenture, the Issuer or the Guarantor, as the case may
be, 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
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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 or the Guarantor may be based, insofar as it relates to
legal matters, upon a certificate or opinion of or representations by counsel,
unless such officer knows that the certificate or opinion of or representations
with respect to the matters upon which his certificate, statement or opinion may
be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous. Any certificate, statement or opinion
of counsel may be based, insofar as it relates to factual matters, information
with respect to which is in the possession of the Issuer or the Guarantor, as
the case may be, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer or the Guarantor, 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 the Guarantor 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 or the Guarantor, as the case may be, 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
91
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 principal of the Notes or the date
fixed for redemption or repayment of the Notes shall not be a Business Day, then
payment of amounts due on the Notes 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 Illinois Law to Govern. This
Indenture and the Notes 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.
SECTION 11.8 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 11.9 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.
ARTICLE TWELVE
REDEMPTION OF NOTES
SECTION 12.1 Right to Redeem; Notices to Trustee.
The Issuer, at its option, may redeem the Notes in accordance with the
provisions of paragraphs 5 and 6 of the Notes. If the Issuer elects to redeem
Notes pursuant to
92
paragraph 5 of the Notes, it shall notify the Trustee in writing of the
redemption date, the Principal Amount at Maturity of Notes to be redeemed and
the Redemption Price. The Issuer shall give the notice to the Trustee provided
for in this Section 12.1 at least 70 days before the redemption date (unless a
shorter notice shall be satisfactory to the Trustee).
SECTION 12.2 Notice of Redemption; Partial
Redemptions. (a) Notice of redemption to the Holders of the Notes 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 register of the Registrar. 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 Note designated
for redemption as a whole or in part, shall not affect the validity of the
proceedings for the redemption of any other Note.
(b) The notice of redemption to each such Holder
shall specify the Principal Amount at Maturity of each Note held by such Holder
to be redeemed, the date fixed for redemption, the Redemption Price, the place
or places of payment and that payment will be made upon presentation and
surrender of such Note, that on and after said date Original Issue Discount and
interest, if any, 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 Notes. In case any Note is to be redeemed in part
only the notice of redemption shall state the portion of the Principal Amount at
Maturity thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Note, a new Note or Notes in authorized
denominations for an aggregate Principal Amount at Maturity equal to the
unredeemed portion thereof will be
93
issued in the name of the Holder thereof upon cancellation
of the original Note.
(c) The notice of redemption of Notes 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.
(d) 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 Notes so called for redemption at the applicable
Redemption Price. In the 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 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. Notes may be redeemed in part in multiples
equal to $1,000 Principal Amount at Maturity or any integral multiple thereof.
The Trustee shall promptly notify the Issuer in writing of the Notes selected
for redemption. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Note redeemed or to be redeemed only in part, to the portion of
the Principal Amount at Maturity of such Note which has been or is to be
redeemed.
SECTION 12.3 Payment of Notes Called for
Redemption. If notice of redemption has been given as provided in Section 12.2,
the Notes or portions of the Notes 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, and on and after said date (unless the Issuer shall default in
the payment of such Notes at the applicable Redemption Price) the Original Issue
94
Discount and interest, if any, on the Notes or portions of Notes so called for
redemption shall cease to accrue, and, except as provided in Sections 6.5 and
10.4, such Notes 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 Notes except the right to receive
the applicable Redemption Price thereof. On presentation and surrender of such
Notes at a place of payment specified in said notice, such Notes or the
specified portions thereof shall be paid and redeemed by the Issuer at the
applicable Redemption Price.
If any Note 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 yield
to maturity borne by the Notes.
Upon presentation of any Note 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 Note
or Notes, of authorized denominations, in Principal Amount at Maturity equal to
the unredeemed portion of the Note so presented.
SECTION 12.4 Exclusion of Certain Notes from
Eligibility for Selection for Redemption. Notes 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: (a) the Issuer; (b) the Guarantor; or (c) 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 or the
Guarantor.
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ARTICLE THIRTEEN
GUARANTEE
SECTION 13.1 Telephone and Data Systems, Inc.
Guarantee. For value received, the Guarantor, in accordance with this Article
Thirteen, hereby absolutely, fully, unconditionally and irrevocably guarantees
to the Trustee and the Holders, as if the Guarantor were the principal debtor,
the full and prompt payment when due of all Indenture Obligations (which for
purposes of this Guarantee shall also be deemed to include all commissions,
fees, charges, costs and other expenses (including, without limitation, all
court costs and reasonable legal fees and disbursements of counsel) arising out
of, or incurred by the Trustee or the Holders in connection with, the
enforcement of this Guarantee).
SECTION 13.2 Continuing Guarantee; No Right of
Set-Off; Independent Obligation. (a) This Guarantee shall be a continuing
guarantee of the payment of all Indenture Obligations and shall remain in full
force and effect until the payment in full of all of the Indenture Obligations
and shall apply to and secure any ultimate balance due or remaining unpaid to
the Trustee or the Holders; and this Guarantee shall not be considered as wholly
or partially satisfied by the payment or liquidation at any time or from time to
time of any sum of money for the time being due or remaining unpaid to the
Trustee or the Holders. Without limiting the generality of the foregoing, the
Guarantor's liability shall extend to all amounts which constitute part of the
Indenture Obligations and would be owed by the Issuer under this Indenture and
the Notes but for the fact that they are unenforceable, reduced, limited,
impaired, suspended or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Issuer.
(b) The Guarantor hereby guarantees that the
Indenture Obligations will be paid to the Trustee without set-off or
counterclaim or other reduction whatsoever (whether for taxes, withholding or
otherwise) in lawful currency of the United States of America.
96
(c) The Guarantor's liability to pay or perform
or cause the performance of the Indenture Obligations under this Guarantee shall
arise forthwith after demand for payment or performance by the Trustee has been
given to the Guarantor in the manner prescribed in Section 11.4 hereof.
(d) Except as provided herein, the provisions of
this Article Thirteen cover all agreements between the parties hereto relative
to this Guarantee and none of the parties shall be bound by any representation,
warranty or promise made by any Person relative thereto which is not embodied
herein; and it is specifically acknowledged and agreed that this Guarantee has
been delivered by the Guarantor free of any conditions whatsoever and that no
representations, warranties or promises have been made to the Guarantor
affecting its liabilities hereunder, and that the Trustee shall not be bound by
any representations, warranties or promises now or at any time hereafter made by
the Issuer to the Guarantor.
(e) This Guarantee is a guarantee of payment and
not of collectibility and is in no way conditioned or contingent upon any
attempt to collect from or enforce performance or compliance by the Issuer or
upon any other event or condition whatsoever.
(f) The obligations of the Guarantor set forth
herein constitute the full recourse obligations of the Guarantor enforceable
against it to the full extent of all its assets and properties.
SECTION 13.3 Guarantee Unconditional. The
obligations of the Guarantor hereunder are independent of the obligations of the
Issuer under the Notes and this Indenture and a separate action or actions may
be brought and prosecuted against the Guarantor whether or not an action or
proceeding is brought against the Issuer and whether or not the Issuer is joined
in any such action or proceeding. The liability of the Guarantor hereunder is
irrevocable, absolute and unconditional and (to the extent permitted by law) the
liability and obligations of the Guarantor hereunder shall not be released,
discharged, mitigated, waived, impaired or affected in whole or in part by:
97
(a) any lack of validity or enforceability in
respect of any indebtedness or other obligation of the Issuer or any
other Person under this Indenture or the Notes, or any agreement or
instrument relating to any of the foregoing;
(b) any grants of time, renewals, extensions,
indulgences, releases, discharges or modifications which the Trustee or
the Holders may extend to, or make with, the Issuer, the Guarantor or
any other Person, or any change in the time, manner or place of payment
of, or in any other term of, all or any of the Indenture Obligations,
or any other amendment or waiver of, or any consent to or departure
from, this Indenture or the Notes, including any increase or decrease
in the Indenture Obligations;
(c) the taking of security from the Issuer, the
Guarantor or any other Person, and the release,
discharge or alteration of, or other dealing with, such
security;
(d) the abstention from taking security from the
Issuer, the Guarantor or any other Person or from perfecting,
continuing to keep perfected or taking advantage of any security;
(e) any loss, diminution of value or lack of
enforceability of any security received from the
Issuer, the Guarantor or any other Person, and
including any other guarantees received by the Trustee;
(f) any other dealings by the Issuer or the
Guarantor with any other Person, or with any security;
(g) the Trustee's or the Holders' acceptance of
compositions from the Issuer or the Guarantor;
(h) the application by the Holders or the Trustee
of all monies at any time and from time to time received from the
Issuer, the Guarantor or any other Person on account of any
indebtedness and liabilities owing by the Issuer or the Guarantor to
the Trustee or the Holders, in such manner as the Trustee or the
Holders deems best and the changing of such application
98
in whole or in part and at any time or from time to time, or any manner
of application of collateral, or proceeds thereof, to all or any of the
Indenture Obligations, or the manner of sale of any collateral;
(i) the release or discharge of the Issuer or the
Guarantor or of any other guarantor of the Notes or of any Person
liable directly as surety or otherwise by operation of law or otherwise
for the Notes, other than an express release in writing given by the
Trustee, on behalf of the Holders, of the liability and obligations of
the Guarantor hereunder;
(j) any change in the name, business, capital
structure or governing instrument of the Issuer or the
Guarantor or any refinancing or restructuring of any of
the Indenture Obligations;
(k) the sale of the Issuer's or the Guarantor's
business or any part thereof;
(l) any merger or consolidation, arrangement or
reorganization of the Issuer, the Guarantor, any Person resulting from
the merger or consolidation of the Issuer or the Guarantor with any
other Person or any other successor to such Person or merged or
consolidated Person or any other change in the corporate existence,
structure or ownership of the Issuer or the Guarantor or any change in
the corporate relationship between the Issuer and the Guarantor, or any
termination of such relationship;
(m) the insolvency, bankruptcy, liquidation,
winding-up, dissolution, receivership, arrangement, readjustment,
assignment for the benefit of creditors or distribution of the assets
of the Issuer or its assets or any resulting discharge of any
obligations of the Issuer (whether voluntary or involuntary) or of the
Guarantor (whether voluntary or involuntary) or the loss of corporate
existence;
(n) any arrangement or plan of reorganization
affecting the Issuer or the Guarantor;
99
(o) any failure, omission or delay on the part of
the Issuer to conform or comply with any term of this
Indenture;
(p) any limitation on the liability or
obligations of the Issuer or any other person under this Indenture, or
any discharge, termination, cancellation, distribution, irregularity,
invalidity or unenforceability in whole or in part, of this Indenture;
(q) any other circumstance that might otherwise
constitute a defense available to, or discharge of, the
Issuer or the Guarantor; or
(r) any modification, compromise, settlement or
release by the Trustee, or by operation of law or otherwise, of the
Indenture Obligations or the liability of the Issuer or any other
obligor under the Notes, or of any collateral, in whole or in part, and
any refusal of payment by the Trustee, in whole or in part, from any
other obligor or other guarantor in connection with any of the
Indenture Obligations, whether or not with notice to, or further assent
by, or any reservation of rights against, the Guarantor.
SECTION 13.4 Right to Demand Full Performance.
In the event of any demand for payment by the Trustee from the Guarantor
hereunder, the Trustee or the Holders shall have the right to demand its full
claim and to receive all payments in respect thereof until the Indenture
Obligations have been paid in full, and the Guarantor shall continue to be
liable hereunder for any balance which may be owing to the Trustee or the
Holders by the Issuer under this Indenture and the Notes. The retention by the
Trustee or the Holders of any security, prior to the realization by the Trustee
or the Holders of its rights to such security upon foreclosure thereon, shall
not, as between the Trustee and the Guarantor, be considered as a purchase of
such security, or as payment, satisfaction or reduction of the Indenture
Obligations due to the Trustee or the Holders by the Issuer or any part thereof.
The Guarantor, promptly after demand, will reimburse the Trustee and the Holders
for all costs and expenses of collecting such amount under, or enforcing this
100
Guarantee, including, without limitation, the reasonable fees and expenses of
counsel.
SECTION 13.5 Waivers. (a) The Guarantor hereby
expressly waives (to the extent permitted by law) notice of the acceptance of
this Guarantee and notice of the incurrence, existence, renewal, extension or
the non-performance, non-payment, or non-observance on the part of the Issuer of
any of the terms, covenants, conditions and provisions of this Indenture or the
Notes or any other notice whatsoever to or upon the Issuer or the Guarantor with
respect to the Indenture Obligations, whether by statute, rule of law or
otherwise. The Guarantor hereby acknowledges communication to it of the terms of
this Indenture and the Notes and all of the provisions therein contained and
consents to and approves the same. The Guarantor hereby expressly waives (to the
extent permitted by law) diligence, presentment, protest and demand for payment
with respect to (i) any notice of any sale, transfer or other disposition of any
right, title to or interest in the Notes by the Holders or in this Indenture,
(ii) any release of the Guarantor from its obligations hereunder resulting from
any loss by it of its rights of subrogation hereunder and (iii) any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge, release or defense of a guarantor or surety or that might otherwise
limit recourse against the Guarantor.
(b) Without prejudice to any of the rights or
recourses which the Trustee or the Holders may have against the Issuer, the
Guarantor hereby expressly waives (to the extent permitted by law) any right to
require the Trustee or the Holders to:
(i) enforce, assert, exercise, initiate or exhaust any
rights, remedies or recourse against the Issuer, the Guarantor or any
other Person under this Indenture or otherwise;
(ii) value, realize upon, or dispose of any
security of the Issuer or any other Person held by the
Trustee or the Holders;
101
(iii) initiate or exhaust any other remedy which
the Trustee or the Holders may have in law or equity;
or
(iv) mitigate the damages resulting from any
default under this Indenture;
before requiring or becoming entitled to demand payment from the Guarantor under
this Guarantee.
SECTION 13.6 The Guarantor Remains Obligated in the Event the
Issuer is No Longer Obligated to Discharge Indenture Obligations. It is the
express intention of the Trustee and the Guarantor that if for any reason the
Issuer has no legal existence, is or becomes under no legal obligation to
discharge the Indenture Obligations owing to the Trustee or the Holders by the
Issuer or if any of the Indenture Obligations owing by the Issuer to the Trustee
or the Holders becomes irrecoverable from the Issuer by operation of law or for
any reason whatsoever, this Guarantee and the covenants, agreements and
obligations of the Guarantor contained in this Article Thirteen shall
nevertheless be binding upon the Guarantor, until such time as all such
Indenture Obligations have been paid in full to the Trustee and all Indenture
Obligations owing to the Trustee or the Holders by the Issuer have been
discharged, or such earlier time as Section 10.1 shall apply to the Notes and
the Guarantor shall be responsible for the payment thereof to the Trustee or the
Holders upon demand.
SECTION 13.7 Subrogation. The Guarantor will not exercise any
rights that it may now or hereafter acquire against the Issuer or any other
guarantor that arise from the existence, payment, performance or enforcement of
the Guarantor's obligations under the Guarantee including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the
Holders or the Trustee against the Issuer or any other guarantor, whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Issuer or any other guarantor, directly or indirectly, in cash or other property
or by set-off or in any other manner, payment or security on account of such
claim, remedy or right,
102
unless and until all of the Indenture Obligations and all other amounts payable
under this Guarantee shall have been paid in full in cash.
SECTION 13.8 Guarantee Is In Addition to Other Security. This
Guarantee shall be in addition to and not in substitution for any other
guarantees or other security which the Trustee may now or hereafter hold in
respect of the Indenture Obligations owing to the Trustee or the Holders by the
Issuer and (except as may be required by law) the Trustee shall be under no
obligation to marshal in favor of the Guarantor any other guarantees or other
security or any moneys or other assets which the Trustee may be entitled to
receive or upon which the Trustee or the Holders may have a claim.
SECTION 13.9 Release of Security Interests. Without limiting
the generality of the foregoing and except as otherwise provided in this
Indenture, the Guarantor hereby consents and agrees, to the fullest extent
permitted by applicable law, that the rights of the Trustee hereunder, and the
liability of the Guarantor hereunder, shall not be affected by any and all
releases for any purpose of any collateral, if any, from the Liens and security
interests created by any collateral document and that this Guarantee shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Indenture Obligations is rescinded or must otherwise
be returned by the Trustee upon the insolvency, bankruptcy or reorganization of
the Issuer or otherwise, all as though such payment had not been made.
SECTION 13.10 No Bar to Further Actions. Except as provided by
law, no action or proceeding brought or instituted under this Article Thirteen
and this Guarantee and no recovery or judgment in pursuance thereof shall be a
bar or defense to any further action or proceeding which may be brought under
this Article Thirteen and this Guarantee by reason of any further default or
defaults under Article Thirteen and this Guarantee or in the payment of any of
the Indenture Obligations owing by the Issuer.
SECTION 13.11 Failure to Exercise Rights Shall
Not Operate As a Waiver; No Suspension of Remedies. (a) No
103
failure to exercise and no delay in exercising, on the part of the Trustee or
the Holders, any right, power, privilege or remedy under this Article Thirteen
and this Guarantee shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power, privilege or remedy preclude any other or
further exercise thereof, or the exercise of any other right, powers, privileges
or remedies. The rights and remedies herein provided for are cumulative and not
exclusive of any rights or remedies provided in law or equity.
(b) Nothing contained in this Article Thirteen shall limit the
right of the Trustee or the Holders to take any action to accelerate the
maturity of the Notes pursuant to Article Five or to pursue any rights or
remedies hereunder or under applicable law.
SECTION 13.12 Release of Guarantee. Concurrently with the
payment in full of all of the Indenture Obligations, then the Guarantor shall be
released from and relieved of its obligations under this Article Thirteen. Upon
the delivery by the Issuer to the Trustee of an Officers' Certificate and, if
requested by the Trustee, an Opinion of Counsel to the effect that the
transaction giving rise to the release of this Guarantee was made by the Issuer
in accordance with the provisions of this Indenture and the Notes, the Trustee
shall execute any documents reasonably required in order to evidence the release
of the Guarantor from its obligations under this Guarantee. If any of the
Indenture Obligations are revived and reinstated after the termination of this
Guarantee, then all of the obligations of the Guarantor under this Guarantee
shall be revived and reinstated as if this Guarantee had not been terminated
until such time as the Indenture Obligations are paid in full, and the Guarantor
shall enter into an amendment to this Guarantee, reasonably satisfactory to the
Trustee, evidencing such revival and reinstatement.
SECTION 13.13 Execution of Guarantee. To evidence the
Guarantee, the Guarantor hereby agrees to execute a notation relating to the
Guarantee substantially in the form set forth in Exhibit A, to be endorsed on
each Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of the Guarantor
104
by its Chairman of the Board, its President or one of its Vice Presidents.
The signature of any of these officers on the Notes may be manual or facsimile.
If an officer whose signature is on this Indenture no longer
holds that office at the time the Trustee authenticates a Note on which this
Guarantee is endorsed, such Guarantee shall be valid nevertheless.
The Guarantor hereby agrees that the Guarantee shall remain in
full force and effect notwithstanding any failure to include on each Note a
notation relating to the Guarantee. The delivery of any Note by the Trustee,
after the authentication thereof hereunder, shall constitute due delivery of the
Guarantee set forth in this Indenture on behalf of the Guarantor.
SECTION 13.14 Guarantee Unsecured Unsubordinated Indebtedness
of Guarantor. The indebtedness represented by this Guarantee is an unsecured
unsubordinated obligation of the Guarantor and in all respects shall rank pari
passu with all existing and future unsecured unsubordinated indebtedness of the
Guarantor.
105
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and delivered as of November 4, 1996.
AMERICAN PORTABLE TELECOM, INC.,
as Issuer
By:___________________________________________
Name:
Title:
TELEPHONE AND DATA SYSTEMS, INC.,
as Guarantor
By:___________________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:___________________________________________
Name:
Title:
106
EXHIBIT A
[FORM OF FACE OF NOTE]
[Global Note Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, 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 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.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.*
[Restricted Note Legend]
"THIS NOTE (OR ITS PREDECESSOR) HAS BEEN ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND UNDER APPLICABLE
STATE SECURITIES LAWS, AND THIS NOTE MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE
EXEMPTION
--------
* This legend should only be added if the Note is issued in global form.
A-1
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (i) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(ii) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (iii) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR
(iv) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (i) THROUGH (iv) IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED
TO IN (A) ABOVE."
["IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS
SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS.]**
--------
** Include on a Definitive Note to be held by an institutional
"accredited investor" (as defined in Rule 501(a), (1), (2), (3) or (7)
under the Securities Act).
A-2
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, RELATING TO "ORIGINAL ISSUE DISCOUNT," THE ISSUE DATE
OF THIS NOTE IS NOVEMBER 4, 1996, THE ISSUE PRICE FOR EACH $1,000 OF PRINCIPAL
AMOUNT PAYABLE AT MATURITY IS $442.00, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT FOR
EACH $1,000 OF PRINCIPAL AMOUNT PAYABLE AT MATURITY IS $558.00, AND THE YIELD TO
MATURITY IS 8.34% PER ANNUM, COMPOUNDED SEMI-ANNUALLY.
AMERICAN PORTABLE TELECOM, INC.
Fully and Unconditionally Guaranteed by
TELEPHONE AND DATA SYSTEMS, INC.
No. CUSIP: 000000XX0
Issue Date: November 4, 1996
Issue Price: $442.00 Original Issue Discount:
(for each $1,000 Principal $558.00 (for each $1,000
Amount at Maturity) Principal Amount at Maturity)
Series A Zero Coupon Note Due 2006
American Portable Telecom, Inc., a Delaware
corporation, promises to pay to or
registered assigns, the Principal Amount at Maturity of
Dollars ($_________) on November 1, 2006.
This Note shall not bear interest except as specified on the
other side of this Note. Original Issue Discount will accrue as specified on the
other side of this Note.
Additional provisions of this Note are set forth on the other
side of this Note.
AMERICAN PORTABLE TELECOM,
INC.
by
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[Seal]
----------------------------
Title:
----------------------------
Title:
Dated: November 4, 1996
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee, certifies
that this is one of the
Notes referred to
in the Indenture.
by
--------------------
Authorized Signatory
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[FORM OF REVERSE SIDE OF NOTE]
AMERICAN PORTABLE TELECOM, INC.
Fully and Unconditionally Guaranteed by
TELEPHONE AND DATA SYSTEMS, INC.
Series A Zero Coupon Note Due 2006
1. Interest
This Note shall not bear interest, except that if the
Principal Amount at Maturity hereof or any portion of such Principal Amount at
Maturity is not paid when due (whether upon acceleration pursuant to Section 5.1
of the Indenture, upon the date set for payment of the Redemption Price pursuant
to paragraph 5 hereof or upon the stated maturity of this Note), then in each
such case the overdue amount shall bear interest at the yield to maturity on the
Notes, compounded semi-annually, which interest, including interest thereon at
the same rate, compounded semi-annually (to the extent that the payment of such
interest shall be legally enforceable), shall accrue from the date such overdue
amount was due to the date of payment of such amount, including interest
thereon, has been made or duly provided for. All such interest shall be payable
on demand.
Original Issue Discount (the difference between the Issue
Price and the Principal Amount at Maturity of the Note), in the period during
which a Note remains outstanding, shall accrue at 8.34% per annum, on a
semi-annual bond equivalent basis using a 360-day year composed of twelve 30-day
months, commencing on the Issue Date of this Note.
2. Method of Payment
Subject to the terms and conditions of the Indenture, the
Issuer will make payments in respect of the Notes to the persons who are
registered Holders of Notes at the close of business on the Business Day
preceding the
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redemption date or stated maturity, as the case may be. Holders must surrender
Notes to a Paying Agent to collect such payments in respect of the Notes. The
Issuer will pay cash amounts in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However, the
Issuer may make such cash payments payable by check payable in such money.
3. Paying Agent and Registrar
Initially, The First National Bank of Chicago (the "Trustee"),
will act as Paying Agent and Registrar. The Issuer may appoint and change any
Paying Agent, Registrar or co-registrar without notice, other than notice to the
Trustee. The Issuer or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Issuer issued the Notes under an Indenture dated as of
November 4, 1996 (the "Indenture"), among the Issuer, Telephone and Data
Systems, Inc., an Iowa corporation (the "Guarantor") and the Trustee. The terms
of the Notes include those stated in the Indenture. Capitalized terms used
herein and not defined herein have the meanings ascribed thereto in the
Indenture. The Notes are subject to all such terms, and Noteholders are referred
to the Indenture for a statement of those terms.
The Notes are unsecured unsubordinated obligations of the
Issuer, ranking pari passu with all other unsecured unsubordinated indebtedness
of the Issuer and limited to $226,245,000 aggregate Principal Amount at Maturity
(subject to Section 2.6 of the Indenture). The Indenture imposes certain
limitations on, among other things, the creation of Secured Debt by the
Guarantor and the participation by the Guarantor in certain Sale and Leaseback
transactions.
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5. Optional Redemption
No sinking fund is provided for the Notes. The Notes may not
be redeemed prior to November 1, 2001. On and after that date, the Issuer may
redeem the Notes in whole or in part at any time at the Redemption Prices
specified below.
The table below shows Redemption Prices of a Note per $1,000
Principal Amount at Maturity on November 1, 2001, at each November 1 thereafter
prior to maturity and at maturity on November 1, 2006, which prices reflect the
accrued Original Issue Discount calculated at each such date. The Redemption
Price of a Note redeemed between such dates would include an additional amount
reflecting the additional Original Issue Discount accrued since the next
preceding date in the table.
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(1) (2) (3)
Original
Issue Redemption
Redemption Discount at Price
Date Issue Price 8.34% (1) +(2)
---------- ----------- ----------- ----------
November 1, 2001 $442.00 $222.60 $ 664.60
November 1, 2002 442.00 279.20 721.20
November 1, 2003 442.00 340.60 782.60
November 1, 2004 442.00 407.20 849.20
November 1, 2005 442.00 479.50 921.50
November 1, 2006 442.00 558.00 1,000.00
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Notes to be
redeemed at the Holder's registered address. Securities in denominations larger
than $1,000 Principal Amount at Maturity may be redeemed in part but only in
integral multiples of $1,000 Principal Amount at Maturity. If money sufficient
to pay the redemption price of all the Notes (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying Agent on or before
the redemption date and certain other conditions are satisfied, on and after
such date Original Issue Discount ceases to accrue on such Notes (or such
portions thereof) called for redemption.
7. Guarantee
Payment and performance of the Indenture Obligations of the
Issuer in connection with the Indenture and the Notes are fully, unconditionally
and absolutely guaranteed by the Guarantor in accordance with the terms of
Article Thirteen of the Indenture.
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8. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in
denominations of $1,000 Principal Amount at Maturity (or, in the case of Notes
sold to institutional "accredited investors" as described in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act in a transaction intended to be exempt
from registration under the Securities Act, minimum denominations of $250,000)
and integral multiples of $1,000 Principal Amount at Maturity. A Holder may
transfer or exchange Notes in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange any
Notes selected for redemption (except, in the case of a Note to be redeemed in
part, the portion of the Note not to be redeemed) or any Securities for a period
of 15 days before a selection of Notes to be redeemed.
9. Persons Deemed Owners
The registered holder of this Note may be treated as the owner
of it for all purposes. Owners of a beneficial interest in the Global Note will
not be considered the owners or Holders of any Note. So long as the Depository,
or its nominee, is the Holder of the Global Note, the Depository or such
nominee, as the case may be, will be considered the sole owner and Holder of the
Notes represented by the Global Notes for all purposes under the Indenture and
this Note.
10. Unclaimed Money
If money for the payment of any amount with respect to the
Notes remains unclaimed for two years, the Trustee or Paying Agent shall pay the
money back to the Issuer at its request unless the applicable abandoned property
law designates another person. After any such payment, Holders entitled to the
money must look only to the Issuer and not to the Trustee for payment.
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11. Defeasance
Subject to certain conditions, the Issuer at any time may
terminate some or all of its obligations under the Notes and the Indenture if
the Issuer deposits with the Trustee money or Government Obligations for the
payment of the Principal Amount at Maturity on all the Notes.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture may be amended with the written consent of the Holders of at least
a majority in Principal Amount at Maturity Outstanding of the Notes and (ii) any
default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in Principal Amount at Maturity Outstanding
of the Notes. Subject to certain exceptions set forth in the Indenture, without
the consent of any Noteholder, the Issuer, the Guarantor and the Trustee may
amend the Indenture to cure any ambiguity, omission, defect or inconsistency,
provided that no such action adversely affects Holders of the Notes, or to add
guarantees with respect to the Securities, or to provide for uncertificated
Notes in addition to or in place of certificated Notes, or to add additional
covenants, or to secure the Notes.
13. Defaults and Remedies
Under the Indenture, Events of Default include (a) default in
any payment of the Principal Amount at Maturity, Issue Price, accrued Original
Issue Discount or Redemption Price on the Notes when the same becomes due and
payable; (b) failure on the part of the Guarantor or the Issuer to comply with
other agreements in the Notes or in the Indenture, subject to notice and lapse
of time; (c) certain accelerations (including failure to pay within any grace
period after final maturity) of other indebtedness if the amount accelerated (or
so unpaid) equals or exceeds 2% of Consolidated Capitalization of the Guarantor;
(d) the Guarantee ceases to be in full force and effect or the Guarantor or any
person acting on behalf of the Guarantor shall deny or disaffirm the Guarantor's
obligations under
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the Guarantee; or (e) certain events of bankruptcy or
insolvency of the Guarantor or the Issuer.
If an Event of Default shall have occurred and be continuing,
then, unless the principal amount of all of the Notes shall have previously
become due and payable, either the Trustee or the Holders of at least 25% in
aggregate Principal Amount at Maturity of the Notes then Outstanding may declare
all the Notes to be immediately due and payable. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Notes becoming due and
payable immediately upon the occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate Principal Amount at
Maturity of the Notes at the time Outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Noteholders notice
of any continuing Default (except a Default in payment of amounts specified in
clause (a) above) if it determines that withholding notice is in their
interests.
14. Trustee Dealings with the Issuer
Subject to certain limitations, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Issuer or its affiliates and may otherwise deal with the Issuer or its
affiliates with the same rights it would have if it were not Trustee.
15. No Recourse Against Others
A director, officer, employee, stockholder or incorporator, as
such, of the Issuer or the Guarantor shall not have any liability for any
obligations of the Issuer or the Guarantor under the Notes or the Indenture or
for any
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claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Noteholder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Notes.
16. Authentication
This Note shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
17. Abbreviations
Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with rights of survivorship
and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to
Minors Act).
18. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Issuer has caused CUSIP numbers
to be printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Noteholders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
19. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF ILLINOIS, EXCEPT AS MAY OTHERWISE BE REQUIRED BY
MANDATORY PROVISIONS OF LAW.
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The Issuer will furnish to any Noteholder upon written request
and without charge to the Noteholder a copy of the Indenture which has in it the
text of this Note in larger type. Requests may be made to:
American Portable Telecom, Inc.
0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
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FORM OF NOTATION ON NOTE RELATING
TO GUARANTEE
The Guarantor (which term includes any successor person under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent
set forth in the Indenture and subject to the provisions in the Indenture, the
complete and punctual payment and performance by the Issuer of the Indenture
Obligations in connection with the Indenture and the Notes, and further agrees
to pay any and all expenses (including, without limitation, all court costs and
reasonable fees and disbursements of counsel) which may be paid or incurred by
the Trustee or the Holders in enforcing their rights under the Guarantee. The
indebtedness evidenced by the Guarantees is an unsecured unsubordinated
obligation of the Guarantor and in all respects shall rank pari passu with all
existing and future unsecured unsubordinated indebtedness of the Guarantor.
The obligations of the Guarantor to the Holders of Notes and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article Thirteen of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee. Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture.
TELEPHONE AND DATA
SYSTEMS, INC.
[SEAL]
By________________________
Title:
Attest:___________________
Title:
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
And irrevocably appoint agent to transfer this Note on the books of
the Issuer. The agent may substitute another to act for him.
-------------------------------------------------------------------------------
Date:____________________ Your Signature:__________________________________
-------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
Signature Guarantee: ________________________________________________________
(Signature must be guaranteed by an
"eligible guarantor institution" that
is, a bank, stockbroker, savings and
loan association or credit union
meeting the requirements of the
Registrar, which requirements include
membership or participation in the
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Securities Transfer Agents Medallion
Program ("STAMP") or such other
"signature guarantee program" as may
be determined by the Registrar in
addition to, or in substitution for,
STAMP.)
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER OF RESTRICTED NOTE
This certificate relates to $_________ Principal Amount at Maturity of Notes
held in (check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
|_| has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Note held by the Depository a Note or
Notes in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global
Note (or the portion thereof indicated above); or
|_| has requested the Trustee by written order to exchange or register the
transfer of a Note or Notes.
The undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
(1) |_| acquired for the undersigned's own account,
without transfer (in satisfaction of
Section 2.5(a)(ii)(A) of the Indenture); or
(2) |_| transferred to the Issuer; or
(3) |_| transferred pursuant to and in compliance
with Rule 144A under the Securities Act of
1933, as amended; or
(4) |_| transferred pursuant to and in compliance
with Regulation S under the Securities Act
of 1933, as amended; or
(5) |_| transferred pursuant to and in compliance
with Rule 144 under the Securities Act of
1933, as amended; or
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(6) |_| transferred pursuant to an effective
registration statement under the Securities
Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered holder thereof; provided, however, that if box (4), (5) or (6) is
checked, the Issuer or the Trustee may require evidence reasonably satisfactory
to them as to the compliance with the restrictions set forth in the legend on
the face of this Security.
------------------------------------------
Signature
Signature Guarantee:
-------------------------------------------------------
(Signature must be guaranteed by an
"eligible guarantor institution", that
is, a bank, stockbroker, saving and loan
association or credit union meeting the
requirements of the Registrar, which
requirements include membership or
participation in the Securities Transfer
Agents Medallion Program ("STAMP") or such
other signature guarantee program as may be
determined by the Registrar in addition to,
or in substitution for, STAMP.)
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[TO BE ATTACHED TO GLOBAL NOTE]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been
made:
======== ================ ================ ================= ===============
Principal Amount
Amount of Amount of at Maturity Siganture of
decrease in increase in of this Global authorized
Principal amount Principal Amount Note following signatory of
Date of at Maturity of at Maturity of such decrease Trustee or
Exchange this Global Note this Global Note or increase Notes Custodian
-------- ---------------- ---------------- ----------------- ---------------
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