As filed with the Securities and Exchange Commission on May 26, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN TOWER CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 65-0723837
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
116 Huntington Avenue, Boston, Massachusetts 02116
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
STEVEN B. DODGE
American Tower Corporation
116 Huntington Avenue
Boston, Massachusetts 02116
(617) 375-7500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
NORMAN A. BIKALES, ESQ.
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 338-2800
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement as determined in
light of market conditions and other factors.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
=================================================================================================================================
Proposed Proposed
Amount Maximum Maximum
Title of Each Class of to be Offering Price Aggregate Amount of
Securities to be Registered(1) Registered Per Security(2)(3) Offering Price(4)(5) Registration Fee(4)
- ---------------------------------------------------------------------------------------------------------------------------------
Debt Securities(6)
Preferred Stock, par value $.01 per share....
Depositary Shares Representing Preferred
Stock....
Class A Common Stock, par value $.01 per
share(7)
Warrants.....................................
Total $1,000,000,000 $1,000,000,000 $264,000(8)
=================================================================================================================================
(Footnotes on next page)
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
(1) The Debt Securities, Preferred Stock, Depositary Shares, Class A Common
Stock and/or Warrants covered hereby are collectively referred to as the
"Offered Securities." Offered Securities registered hereunder may be sold
separately, together or as units with other Offered Securities registered
hereunder. Subject to Footnote (4), there are being registered hereunder an
indeterminate principal amount of Offered Securities as may be sold from
time to time by the registrant. This Registration Statement also covers
contracts that may be issued by the registrant under which the counterparty
may be required to purchase Offered Securities. Such contracts would be
issued with Offered Securities. There are also being registered hereunder
an indeterminate principal amount of Offered Securities as may be issuable
upon conversion or exchange of Debt Securities, Preferred Stock or Warrants
or pursuant to antidilution provisions thereof.
(2) In U.S. Dollars or the equivalent thereof in one or more foreign currencies
or currency units or composite currencies, including the European Currency
Unit.
(3) The proposed maximum offering price per unit will be determined from time
to time by the registrant in connection with the issuance by the registrant
of the securities registered hereunder.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o). In no event will the aggregate initial offering
price of the Offered Securities issued under the Registration Statement
exceed $1,000,000,000 or the equivalent thereof in one or more foreign or
composite currencies.
(5) No separate consideration will be received for Debt Securities, Common
Stock, Preferred Stock or Depositary Shares that are issued upon conversion
of Debt Securities, Preferred Stock or Depositary Stock.
(6) If any such Debt Securities are issued at an original issue discount, then
the offering price shall be in such greater principal amount as shall
result in an aggregate initial offering price of up to $1,000,000,000.
(7) The aggregate amount of Common Stock registered hereunder is limited to
that which is permissible under Rule 415(a)(4) under the Securities Act of
1933, as amended.
(8) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended.
--------------
The information contained in this Prospectus is not complete and may be changed.
We may not sell these securities until the related registration statement filed
with the Securities and Exchange Commission is effective. This Prospectus is not
an offer to sell nor is it seeking an offer to buy these securities in any state
where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 26, 2000
PROSPECTUS
$1,000,000,000
[LOGO]
American Tower Corporation
Debt Securities, Preferred Stock, Depositary Shares,
Class A Common Stock and Warrants
----------------------
We may from time to time offer:
o debt securities,
o shares of our preferred stock,
o fractional shares of our preferred stock in the form of depositary shares,
o shares of our Class A common stock, or
o warrants to purchase any of these securities.
The securities we offer will have an aggregate public offering price of up
to $1,000,000,000.
We will show the particular securities we offer and their specific terms in
a supplement to this document. In each case we would describe the type and
amount of securities we are offering, the initial public offering price, and the
other terms of the offering.
Our Class A common stock is listed on the New York Stock Exchange under the
symbol "AMT." We will make application to list any shares of Class A common
stock sold pursuant to a supplement to this prospectus on the NYSE. We have not
determined whether we will list any of the other securities we may offer on any
exchange or over-the-counter market. If we decide to seek listing of any
securities, the supplement will disclose the exchange or market.
Investing in our securities involves risks. See "Risk Factors" beginning on
page 1.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
We may offer the securities directly, through agents designated from time
to time by us or to or through underwriters or dealers. We will show in a
supplement the names of any agents or underwriters involved in the sale of any
securities. We will also describe any applicable purchase price and fee or
commission or discount arrangement between or among us and/or them. See "Plan of
Distribution" on page 20. We may not sell any securities without delivery of a
supplement describing the method and terms of the offering of the securities.
Our principal place of business is 116 Huntington Avenue, Boston,
Massachusetts 02116 and our telephone number is (617) 375-7500.
The date of this prospectus is , 2000
TABLE OF CONTENTS
About This Prospectus........................ (i)
Cautionary Note Regarding Forward-
Looking Statements...................... (i)
American Tower............................... 1
Risk Factors................................. 1
Ratio of Earnings to Fixed Charges........... 5
Use of Proceeds.............................. 5
Description of Certain Indebtedness.......... 5
Description of Debt Securities............... 7
Description of Capital Stock................. 12
Description of Depositary Shares............. 16
Description of Warrants...................... 19
Plan of Distribution......................... 20
Validity of the Offered Securities........... 21
Experts...................................... 21
Where You Can Find More Information.......... 22
Documents Incorporated By Reference.......... 22
You should rely only on the information incorporated by reference or
provided in this document. We have not authorized anyone else to provide you
with different information. We are not making an offer of these securities in
any jurisdiction where it is unlawful. You should not assume that the
information in this prospectus is accurate as of any date other than the date on
the front of this document.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement we filed with the SEC
using a "shelf" registration process. Under this shelf process, we may sell any
combination of the securities described in this prospectus in one of more
offerings up to a total dollar amount of proceeds of $1.0 billion. This
prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus supplement
containing specific information about the terms of that offering. The prospectus
supplement may also add, update, or change information contained in this
prospectus. You should read both this prospectus and any prospectus supplement
together with additional information described under the heading "Where You Can
Find More Information" and "Documents Incorporated By Reference."
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
We have made and incorporated by reference forward-looking statements in
this document. Forward-looking statements include those regarding our goals,
beliefs, plans or current expectations and other statements contained regarding
matters that are not historical facts. For example, when we use the words
believe, expect, anticipate or similar expressions, we are making
forward-looking statements. Forward-looking statements include statements
concerning:
o the outcome of our growth strategy,
o future results of operations,
o liquidity and capital expenditures,
o construction and acquisition activities,
o debt levels and the ability to obtain financing and make payments on our
debt,
o regulatory developments and competitive conditions in the communications
site and wireless carrier industries,
o projected growth of the wireless communications and wireless carrier
industries,
o dependence on demand for satellites for Internet data transmission, and
o general economic conditions.
Our forward-looking statements are subject to risks and uncertainties. You
should note that many factors, some of which are discussed elsewhere in this
prospectus or in the documents we have incorporated by reference, could affect
us in the future and could cause our results to differ materially from those
expressed in our forward-looking statements. For a discussion of some of these
factors, please read carefully the information under "Risk Factors" beginning on
page 1. We are not required to release publicly the results of any revisions to
these forward-looking statements we may make to reflect future events or
circumstances.
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AMERICAN TOWER
We are a wireless communications and broadcast infrastructure company
operating in three business segments.
o We operate a leading network of communications towers and are the largest
independent operator of broadcast towers in North America. Giving effect as
of May 26, 2000 to our pending transactions, we have approximately 10,400
multi-user sites in the United States, Mexico and Canada, including
approximately 300 broadcast tower sites.
o We provide comprehensive network development services for wireless service
providers and broadcasters. We offer full turnkey network development
solutions to our customers, consisting of radio frequency engineering,
network design, site acquisition, zoning and other regulatory approvals,
construction management, tower construction and antenna installation.
o We operate a leading teleport business, which transmits Internet, voice,
data and video communications worldwide. We have approximately 160
satellite antennas in various locations across the United States, with
major facilities near New York, Washington, D.C., Dallas and San Francisco,
as well as the Northeast, Southwest and Pacific Northwest, giving effect as
of May 26, 2000 to our pending transactions.
We estimate that our three business segments accounted for the following
percentages of pro forma 1999 operating revenues:
o Rental and management--53.0%,
o Network development services--27.0%, and
o Internet, voice, data and video transmission services--20.0%.
RISK FACTORS
You should consider carefully the following factors and other information in
this prospectus before deciding to invest in our securities.
If we cannot keep raising capital, our growth will be impeded.
Without additional capital, we would need to curtail our acquisition and
construction programs. We expect to use borrowed funds to satisfy most of our
capital needs. However, we must continue to satisfy financial ratios and to
comply with financial and other covenants in order to do so. If our revenues and
cash flow do not meet expectations, we may lose our ability to borrow money.
These same factors, as well as market conditions beyond our control, could make
it difficult or impossible for us to sell securities as an alternative to
borrowing.
Meeting payments on our large debt could be a burden to us.
Our high debt level makes us vulnerable to downturns in our operations. This
high debt level requires us to use most of our cash flow to make interest and
principal payments. If we do not generate sufficient cash flow through our
operations to make interest and principal payments, we may be forced to sell
debt or equity securities or sell some of our core assets. This could be harmful
to our business and our securityholders. Market conditions or our own financial
situation may require us to make these sales on unattractive terms.
Demand for tower space may be beyond our control.
Many of the factors affecting the demand for tower space, and therefore our
cash flow, are beyond our control. Those factors include:
o consumer demand for wireless services,
o the financial condition of wireless service providers and their preference
for owning or leasing antennae sites,
o the growth rate of wireless communications or of a particular wireless
segment,
o the number of wireless service providers in a particular segment,
nationally or locally,
-1-
o governmental licensing of broadcast rights,
o zoning, environmental and other government regulations, and
o technological changes.
Roaming and resale arrangements could also adversely affect demand. These
arrangements enable a wireless service provider to serve customers outside its
license area through agreements with other providers. Wireless providers might
consider roaming and resale arrangements preferable to leasing antennae space.
New tower construction, particularly build-to-suit projects, involves
uncontrollable risks and increasing competition.
Our increasing focus on major build-to-suit projects for wireless service
providers entails several unique risks. First is our greater dependence on a
limited number of customers. In addition, although we have the benefit of an
anchor tenant in build-to-suit projects, we may not be able to find a sufficient
number of additional tenants. In fact, one reason wireless service providers may
prefer build-to-suit arrangements is to share or escape the costs of an
undesirable site. A site may be undesirable because it has high construction
costs or may be considered a poor location by other providers.
Our expanded construction activities also involve other substantial risks.
These risks include:
o increasing our debt and the amount of payments on that debt,
o uncontrollable risks that could delay or increase the cost of a project,
o increasing competition for construction sites and experienced tower
construction companies, resulting in significantly higher costs and failure
to meet time schedules,
o failure to meet time schedules that could result in our paying significant
penalties to prospective tenants, particularly in build-to-suit situations,
and
o possible lack of sufficient experienced personnel to manage an expanded
construction program. We cannot control the main factors that can prevent,
delay or increase the cost of construction. These factors include:
o zoning and local permitting requirements,
o environmental group opposition,
o availability of skilled construction personnel and construction equipment,
o adverse weather conditions, and
o federal regulations.
Our acquisition strategy involves increasing acquisition costs, high debt levels
and potential management and integration issues.
Increased competition, which we believe will continue, has resulted in
substantially higher acquisition costs, particularly for towers being sold by
wireless service providers. These prices, in turn, result in high debt and debt
service requirements. Equally important, the increased size of our acquisitions
from wireless service providers could create problems we have not faced in the
past. These include:
o dependence on a limited number of customers,
o lease and control provisions more favorable to the wireless service provider
than those we give our tenants generally,
o integration of major national networks into our operational systems,
o demands on managerial personnel that could divert their attention from other
aspects of our business, and
o potential antitrust constraints, either in local markets or on a regional or
national basis, that could impede future acquisitions or require selective
divestitures at unfavorable prices.
An additional risk is the acquisition of significant numbers of towers that
may have limited marketing potential. For example, towers may not be marketable
because of location.
Covenants in our credit facilities could impede our growth strategy and restrict
our ability to pay interest on or redeem our notes.
Our growth strategy may be impaired by restrictive covenants in our credit
facilities. The most significant of these covenants impose limits on our
aggregate borrowings, including in the case of
-2-
American Tower, the parent company, the type and amount of borrowings. We are
also required to meet certain financial ratios and comply with all of the
financial and other covenants in order to borrow funds. Certain types of
acquisitions and investments in other companies are limited. Events beyond our
control may affect our ability to meet these requirements. If these covenants
restrict our ability to borrow funds, acquisitions and construction will be
impeded.
Our credit facilities also restrict the ability of our subsidiaries to pay
dividends or make other distributions to us and prohibit those dividends and
other distributions during periods of default. Since we are a holding company,
with no independent operations, we are dependent on our subsidiaries for funds
to pay interest and principal on our notes, including any debt securities we
offer pursuant to this prospectus. In addition, our credit facilities require us
to invest 100% of all debt and equity offerings, public or private, in our
borrower subsidiaries.
Our existing credit facilities prohibit us from redeeming or repurchasing
any currently outstanding notes for cash. This will probably require us to elect
to repurchase currently outstanding notes with Class A common stock on the
repurchase dates and to obtain lender consent in order to repurchase currently
outstanding notes upon any change in control. This same limitation could impact
our ability to redeem or repurchase any securities we may offer pursuant to this
prospectus.
We are dependent on key personnel and would be hurt if they leave.
The loss of our chief executive officer, Steven B. Dodge, and other
executive officers has a greater likelihood of having a material adverse effect
upon us than it would on most other companies of our size. Our growth strategy
is highly dependent on the efforts of Mr. Dodge and our other executive
officers. Our ability to raise capital is dependent in part on the reputation of
Mr. Dodge. You should be aware that we have not entered into employment
agreements with Mr. Dodge or most of our other executive officers. We may not be
able to retain our executive officers, including those with employment
agreements, or other key personnel or prevent them from competing with us if
they did leave.
Expanding operations into foreign countries could create certain operational and
financial risks.
Our recent expansion into Canada and Mexico, and other possible foreign
operations in the future, could result in adverse financial consequences and
operational problems not experienced in the United States. We have made a
substantial loan to a Mexican company and are committed to construct a sizable
number of towers in that country. We have also invested in a Canadian joint
venture that intends to acquire and construct towers in that country. We may
also, in the future, engage in comparable transactions in other countries. Among
the risks of foreign operations are governmental expropriation and regulation,
inability to repatriate earnings or other funds, currency fluctuations,
difficulty in recruiting trained personnel, and language and cultural
differences that could impair management control and operations.
New technologies could make our tower antenna leasing services less desirable to
potential tenants.
Mobile satellite systems and other new technologies could compete with
land-based wireless communications systems, thereby reducing the demand for
tower lease space and other services we provide. The Federal Communications
Commission has granted license applications for several low-earth orbiting
satellite systems that are intended to provide mobile voice or data services. In
addition, the emergence of new technologies could reduce the need for
tower-based transmission and reception and have an adverse affect on our
operations.
The development and implementation of signal combining technologies, which
permit one antenna to service two different transmission frequencies and,
thereby, two customers, may reduce the need for tower-based broadcast
transmission and hence demand for our antenna space. The growth in delivery of
video services by direct broadcast satellites could also adversely affect demand
for our antenna space.
Demand for teleport services is subject to technological, competitive and
regulatory factors beyond our control.
Demand for teleport services by its primary historical base of video
customers has been diverted to fiber optic transmission services in some
instances. Teleport transmission services for Internet-related entities,
however, have increased. Revenues from these new technologies may not continue
to grow and
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may decline if other forms of transmission, fiber optic or otherwise, are
introduced. In addition, our teleport satellite operations are dependent upon
maintaining valid FCC licensing.
We could be harmed if perceived health risks from radio emissions are
substantiated.
If a connection between radio emissions and possible negative health
effects, including cancer, were established, we would be materially and
adversely affected. The results of several substantial studies by the scientific
community in recent years have been inconclusive. We and the lessees of antennae
sites on our towers are subject to government regulations relating to radio
frequency emissions. We do not maintain any significant insurance with respect
to these matters.
Pro forma financial information is based on estimates and assumptions and may
not be indicative of actual future results.
Our actual future results could vary materially and adversely from those
reflected in the pro forma financial information we have incorporated by
reference in this prospectus. That information is based upon a number of
assumptions we believe to be reasonable. However, our two most significant
acquisitions to date, the AirTouch and AT&T transactions, do not involve the
acquisition of businesses. The towers involved in those acquisitions were
operated as part of the wireless service divisions of AirTouch and AT&T. Those
companies did not maintain extensive separate financial records or prepare
financial statements for the operation of those towers. We have, however,
compiled certain revenue and expense data of those towers in the pro forma
information. In the case of certain expenses, we have estimated amounts based on
both the limited information by the carriers and our own experience with
comparable towers. Neither our auditors, AirTouch's auditors nor AT&T's auditors
have expressed any opinion or provided any form of assurance with respect to
AirTouch's or AT&T's historical data presented in the unaudited pro forma
financial information.
We could have liability under environmental laws.
Under various federal, state and local environmental laws, we, as an owner,
lessee or operator of real estate, may be liable for the substantive costs of
remediating soil and groundwater contaminated by hazardous wastes. Some of these
laws impose responsibility and liability on us even if we did not cause the
contamination or even know about it. Almost all of the towers we own and
operate, other than roof top towers, are located on parcels of land, which could
result in substantial environmental liability. Our liability often will continue
even if we sell the property.
The debt will effectively rank junior to secured debt under our credit
facilities.
Our payment of principal and interest on any debt we may issue will
effectively rank junior to all existing and future debt under our credit
facilities. This is so because the debt under our credit facilities is issued or
guaranteed by our subsidiaries and secured by their assets. Any debt we issue
will also effectively rank junior to all other existing and future debt of our
subsidiaries. We have also guaranteed that debt and secured our guaranty with
our assets, including the stock of our subsidiaries. As a result, in the event
of our insolvency, liquidation or reorganization, or should any of that debt be
accelerated because of a default, we must pay that debt in full before we can
make any payment on any debt we may sell publicly.
No trading market may exist for any offered securities other than Class A common
stock.
No trading market for any offered securities other than Class A common
stock may exist and one may never develop. Accordingly, you may not be able to
sell those securities or sell them at an acceptable price. If a market were to
develop, those offered securities could trade at prices that may be higher or
lower than your purchase price depending on many factors, including prevailing
interest rates, our operating results, the market for similar securities, and,
if those securities are convertible or exchangeable, the market price of the
Class A common stock. We do not intend to list any offered securities other than
Class A common stock on any securities exchange or to seek approval for
quotation through any automated quotation system. One or more of the managing
underwriters, if any, may decide to make a market in the those offered
securities. They would not, however, be obligated to do so and may discontinue
market making at any time. Therefore, any liquidity may disappear and those
offered securities may not be readily marketable.
-4-
Control by our principal stockholders could deter mergers where you could get
more than current market price for your stock.
Control by Mr. Dodge and others may have the effect of discouraging a merger
or other takeover of our company in which holders of common stock may be paid a
premium for their shares over then-current market prices. Mr. Dodge, together
with a limited number of our directors, may be able to control or block the vote
on mergers and other matters submitted to the common stockholders.
Our common stock does not pay dividends.
We have never paid a dividend on our common stock and do not expect to pay
cash dividends in the foreseeable future. In addition, our credit facilities
effectively restrict the payment of cash dividends or other distributions and
the repurchase, redemption or other acquisition of equity securities.
RATIO OF EARNINGS
TO FIXED CHARGES
For purposes of calculating this ratio, earnings consist of loss before
income taxes and extraordinary losses and fixed charges. Fixed charges consist
of capitalized interest, interest expense, amortization of debt discount and
related issuance costs and the component of rental expense that management
believes to be representative of the interest factor on that expense. For the
year ended December 31, 1998, interest expense included redeemable preferred
stock dividends of $3.1 million. For each of the periods listed below, our ratio
of earnings to fixed charges was less than 1.0:1. We had a deficiency in
earnings to fixed charges in each period as follows (amounts in thousands):
Period Deficiency
------ ----------
Period from July 17, 1995 (incorp-
oration) to December 31, 1995........ $ 184
Year ended December 31, 1996............ 434
Year ended December 31, 1997............ 2,507
Year ended December 31, 1998............ 43,844
Year ended December 31, 1999............ 52,520
Three months ended March 31, 2000....... 53,595
USE OF PROCEEDS
We expect to use net proceeds from the sale of the offered securities
primarily to finance construction and acquisitions. We also expect to use those
proceeds to finance general working capital requirements, including repayment
from time to time of borrowings under our credit facilities. Any borrowings so
repaid may be available in the future to finance construction and acquisitions
and other general corporate purposes. We intend to continue actively seeking
construction and acquisition prospects, including acquisitions of companies
outside of the United States engaged in businesses related to the tower
communications business in which we are not presently engaged.
DESCRIPTION OF
CERTAIN INDEBTEDNESS
Credit Facilities
The description below summarizes the more important terms of our borrowing
arrangements, as currently in effect, which we refer to as the credit
facilities. We have previously filed copies of the loan agreement governing the
credit facilities with the SEC. See "Where You Can Find More Information." You
should refer to that agreement for the complete terms of the credit facilities.
Capitalized words used in the description below have specialized meanings
defined in that agreement.
Several of our principal operating subsidiaries have borrowed and expect to
continue to borrow under the credit facilities. We refer to those borrowers
collectively as the borrower subsidiaries. The credit facilities provide for up
to $2.0 billion of loans, the funding of which has been committed to by the
lenders. The credit facilities also contemplate possible additional borrowings
of up to $500.0 million, although the lenders are not committed to fund those
borrowings. Borrowings under the credit facilities are limited by (a) the cash
flow of the borrower subsidiaries and the Restricted Subsidiaries, (b) their
construction costs of Developing Towers, and (c) the aggregate number of
Developing Towers and AirTouch towers we acquire.
The credit facility is made up of three separate types of loans:
o a $650.0 million reducing revolving credit facility maturing on June 30,
2007,
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o an $850.0 million multiple-draw term loan maturing on June 30, 2007, and
o a $500.0 million term loan maturing on December 31, 2007.
We are required to reduce the revolving credit commitments and to amortize
the term loans quarterly, commencing March 31, 2003, in increasing amounts
designed to repay the loans by maturity. We are also required to repay the
loans, and reduce the commitments, out of the proceeds of asset sales and sales
of equity or debt securities, by us or our subsidiaries, and out of cash flow.
We can repay the loans voluntarily at any time, without penalty.
We may incur indebtedness under the credit facilities for acquisitions,
construction and other capital expenditures, working capital and general
corporate purposes.
The credit facilities require compliance with financial coverage ratios that
measure Annualized Operating Cash Flow against Total Debt, Interest Expense, Pro
Forma Debt Service and Fixed Charges. The credit facilities contain other
financial and operational covenants and other restrictions with which the
borrower subsidiaries and the Restricted Subsidiaries must comply, whether or
not there are any borrowings outstanding. These include restrictions on certain
types of acquisitions, other than towers and communications sites, indebtedness,
liens, capital expenditures, investments in Unrestricted Subsidiaries, and the
ability of the borrower subsidiaries and the Restricted Subsidiaries to pay
dividends or make other distributions.
The credit facilities include two events of default that restrict American
Tower, the parent company:
o it cannot have any Indebtedness for Money Borrowed outstanding other than
(a) the convertible notes issued in October 1999 and February 2000, and (b)
other Indebtedness for Money Borrowed in an aggregate amount not to exceed
$500.0 million and containing certain terms, and
o it is required to invest the net cash proceeds of any issue of Capital Stock
(other than pursuant to permitted acquisitions and up to $2.0 million under
stock option plans) or Indebtedness as equity in the borrower subsidiaries.
Our permitted Indebtedness for Money Borrowed must (a) be unsecured, (b)
have no scheduled payments of principal prior to June 30, 2008, (c) have no
required cash payments of interest and (d) have other terms and conditions
reasonably satisfactory to the Majority Lenders.
We and the Restricted Subsidiaries have guaranteed all of the loans. We have
secured the loans by liens on substantially all assets of the borrower
subsidiaries and the Restricted Subsidiaries and all outstanding capital stock
and other debt and equity interests of our direct and indirect subsidiaries.
Convertible Notes
In October 1999, we issued 6.25% Convertible Notes due 2009 in an aggregate
principal amount of $300.0 million and 2.25% Convertible Notes due 2009 at an
issue price of $300.1 million, representing 70.52% of their principal amount at
maturity of $425.5 million. In February 2000, we issued 5.00% Convertible Notes
due 2010 in an aggregate principal amount of $450.0 million. We will accrete
each year as interest expense in our financial statements the difference between
the issue price and the principal amount at maturity of the 2.25% notes. The
6.25% notes are convertible into shares of Class A common stock at a conversion
price of $24.40 per share. The 2.25% notes are convertible into shares of Class
A common stock at a conversion price of $24.00 per share. The 5.00% notes are
convertible into shares of Class A common stock at a conversion price of $51.50
per share. The conversion prices are subject to adjustment in certain customary
circumstances.
We may not redeem the 6.25% notes prior to October 22, 2002. Thereafter, we
may redeem those notes, at our option, in whole or in part at a redemption price
initially of 103.125% of the principal amount. The redemption price declines
ratably immediately after October 15 of each following year to 100% of the
principal amount in 2005. We may not redeem the 2.25% notes prior to October 22,
2003. Thereafter, we may redeem those notes, at our option, in whole or in part
at increasing redemption prices designed to reflect the accrued original issue
discount. We may not redeem the 5.00% notes prior to February 20, 2003.
Thereafter, we may redeem those notes, at our option, in whole or in part at a
redemption price initially of 102.50% of the principal amount. The redemption
price declines ratably immediately after February 15 of each following year to
100% of the principal amount in 2006. We are also required to pay accrued and
unpaid interest in all redemptions of any series of notes.
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Holders may require us to repurchase all or any of their 6.25% notes on
October 22, 2006 at their principal amount, together with accrued and unpaid
interest. Holders may require us to repurchase all or any of their 2.25% notes
on October 22, 2003 at those notes' issue price plus accreted original issue
discount, together with accrued and unpaid interest. Holders may require us to
repurchase all or any of their 5.00% notes on February 20, 2007 at their
principal amount, together with accrued and unpaid interest. We may, at our
option, elect to pay the repurchase price of any series in cash or shares of
Class A common stock, or any combination thereof. Our credit facilities restrict
our ability to repurchase these notes for cash.
The indentures under which these notes are outstanding do not contain any
restrictions on the payment of dividends, the incurrence of debt or liens or the
repurchase of our equity securities or any financial covenants. Neither series
of notes is entitled to the benefit of any sinking fund. The 6.25% notes, the
2.25% notes and the 5.00% notes are junior to our credit facilities and rank
equally with each other.
DESCRIPTION OF
DEBT SECURITIES
The debt securities will be our unsecured direct obligations. They may be
senior or subordinated indebtedness. The debt securities will be issued under
one or more indentures between us and a trustee. Any indenture will be subject
to, and governed by, the Trust Indenture Act of 1939, as amended. The statements
made in this prospectus relating to any indenture and the debt securities to be
issued under any indenture are summaries of certain anticipated provisions of
the indentures, do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of the indentures
and the debt securities.
General
We have filed with the registration statement relating to the offered
securities a form of indenture relating to our senior securities and a form of
indenture relating to our senior subordinated securities and subordinated
securities. Our senior debt securities will rank equally and ratably in right of
payment with other indebtedness of ours that is not subordinated. If we issue
subordinated debt securities, they will be subordinated in right of payment to
the prior payment in full of senior indebtedness, as defined in the applicable
prospectus supplement, and may rank equally and ratably with any other
subordinated indebtedness. They may, however, also be subordinated in right of
payment to senior subordinated securities. See "--Subordination."
We may issue the debt securities without limit as to aggregate principal
amount, in one or more series, in each case as established from time to time in
or pursuant to authority granted by a resolution of our board of directors or as
established in one or more supplemental indentures. We need not issue all debt
securities of one series at the same time. Unless we otherwise provide, we may
reopen a series, without the consent of the holders of such series, for
issuances of additional securities of that series.
We anticipate that any indenture will provide that we may, but need not,
designate more than one trustee under an indenture, each with respect to one or
more series of debt securities. Any trustee under any indenture may resign or be
removed with respect to one or more series of debt securities, and a successor
trustee may be appointed to act with respect to that series.
The applicable prospectus supplement will describe the specific terms
relating to the series of debt securities we will offer, including, where
applicable, the following:
o the title and series designation and whether they are senior securities,
senior subordinated securities or subordinated securities,
o the aggregate principal amount of the securities,
o the percentage of the principal amount at which we will issue the debt
securities and, if other than the principal amount of the debt securities,
the portion of the principal amount of the debt securities payable upon
declaration of acceleration of the maturity of the debt securities,
o if convertible, the initial conversion price, the conversion period and any
other terms governing such conversion,
o the stated maturity date,
o any fixed or variable interest rate or rates per annum,
o the date from which interest may accrue and any interest payment dates,
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o any sinking fund requirements,
o any provisions for redemption, including the redemption price and any
remarketing arrangements,
o whether the securities are denominated or payable in United States dollars
or a foreign currency or units of two or more foreign currencies,
o the events of default and covenants of such securities, to the extent
different from or in addition to those described in this prospectus,
o whether we will issue the debt securities in certificated and/or book-entry
form,
o whether the debt securities will be in registered or bearer form and, if in
registered form, the denominations if other than in even multiples of $1,000
and, if in bearer form, the denominations and terms and conditions relating
thereto,
o whether we will issue any of the debt securities in permanent global form
and, if so, the terms and conditions, if any, upon which interests in the
global security may be exchanged, in whole or in part, for the individual
debt securities represented by the global security,
o the applicability, if any, of the defeasance and covenant defeasance
provisions described in this prospectus or any prospectus supplement,
o whether we will pay additional amounts on the securities in respect of any
tax, assessment or governmental charge and, if so, whether we will have the
option to redeem the debt securities instead of making this payment, and
o the subordination provisions, if any, relating to the debt securities.
We may issue debt securities at less than the principal amount payable upon
maturity (we refer to these securities as "original issue discount securities").
If material or applicable, we will describe in the applicable prospectus
supplement special U.S. federal income tax, accounting and other considerations
applicable to original issue discount securities.
Except as described under "--Merger, Consolidation or Sale of Assets" or as
may be set forth in any prospectus supplement, an indenture will not contain any
other provisions that would limit our ability to incur indebtedness or that
would afford holders of the debt securities protection in the event of a highly
leveraged or similar transaction involving us or in the event of a change of
control. You should review carefully the applicable prospectus supplement for
information with respect to events of default and covenants applicable to the
securities being offered.
Denominations, Interest, Registration and Transfer
Unless otherwise described in the applicable prospectus supplement, we will
issue the debt securities of any series that are registered securities in
denominations that are even multiples of $1,000, other than global securities,
which may be of any denomination.
Unless otherwise specified in the applicable prospectus supplement, we will
pay the interest on and principal of and premium, if any, on any debt securities
at the corporate trust office of the trustee. At our option, however, we may
make payment of interest by check mailed to the address of the person entitled
to the payment as it appears in the applicable register or by wire transfer of
funds to that person at an account maintained within the United States.
If we do not punctually pay or duly provide for interest on any interest
payment date, the defaulted interest will be paid either:
o to the person in whose name the debt security is registered at the close of
business on a special record date to be fixed by the applicable trustee or
o in any other lawful manner, all as more completely described in the
applicable indenture.
You may have your debt securities broken into more debt securities of
smaller denominations or combined into fewer debt securities of larger
denominations, as long as the total principal amount is not changed. This is
called an "exchange."
You may exchange or transfer debt securities at the office of the trustee.
The trustee acts as our agent for registering debt securities in the names of
holders and transferring debt securities. We may change this appointment to
another entity or perform it ourselves. The entity performing the role of
maintaining the list of registered holders is called the "security registrar."
It will also perform transfers.
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You will not be required to pay a service charge to transfer or exchange
debt securities, but you may be required to pay for any tax or other
governmental charge associated with the exchange or transfer. The security
registrar will make the transfer or exchange only if it is satisfied with your
proof of ownership.
Merger, Consolidation or Sale of Assets
Under any indenture, we are generally permitted to consolidate or merge with
another company. We are also permitted to sell substantially all of our assets
to another company, or to buy substantially all of the assets of another
company. However, we may not take any of these actions unless all the following
conditions are met:
o If we merge out of existence or sell our assets, the other company must be a
corporation, partnership or other entity organized under the laws of a State
or the District of Columbia or under federal law. The other company must
agree to be legally responsible for the debt securities.
o The merger, sale of assets or other transaction must not cause a default on
the debt securities. In addition, we must not already be in default, unless
the merger or other transaction would cure the default. A default for this
purpose would include any event that would be an event of default if the
requirements for giving us default notice or our default having to exist for
a specific period of time were disregarded.
Events of Default and Related Matters
Events of Default. The term "event of default" means any of the following:
o We do not pay the principal or any premium on a debt security on its due
date.
o We do not pay interest on a debt security within 30 days of its due date.
o We do not deposit any sinking fund payment on its due date.
o We remain in breach of any other term of the applicable indenture for 60
days after we receive a notice of default stating we are in breach. Either
the trustee or holders of 25% of the principal amount of debt securities of
the affected series may send the notice.
o We file for bankruptcy or certain other events in bankruptcy, insolvency or
reorganization occur.
o Any other event of default described in the applicable prospectus supplement
occurs.
Remedies If an Event of Default Occurs. If an event of default has occurred
and has not been cured, the trustee or the holders of at least 25% in principal
amount of the debt securities of the affected series may declare the entire
principal amount of all the debt securities of that series to be due and
immediately payable. This is called a declaration of acceleration of maturity.
If an event of default occurs because of certain events in bankruptcy,
insolvency or reorganization, the principal amount of all the debt securities of
that series will be automatically accelerated, without any action by the trustee
or any holder. At any time after the trustee or the holders have accelerated any
series of debt securities, but before a judgment or decree for payment of the
money due has been obtained, the holders of at least a majority in principal
amount of the debt securities of the affected series may, under certain
circumstances, rescind and annul such acceleration.
Except in cases of default, where the trustee has some special duties, the
trustee is not required to take any action under the applicable indenture at the
request of any holders unless the holders offer the trustee reasonable
protection from expenses and liability. This is known as an indemnity. If
reasonable indemnity is provided, the holders of a majority in principal amount
of the outstanding securities of the relevant series may direct the time, method
and place of conducting any lawsuit or other formal legal action seeking any
remedy available to the trustee. These majority holders may also direct the
trustee in performing any other action under the applicable indenture, subject
to certain limitations.
Before you bypass the trustee and bring your own lawsuit or other formal
legal action or take other steps to enforce your rights or protect your
interests relating to the debt securities, the following must occur:
o You must give the trustee written notice that an event of default has
occurred and remains uncured.
o The holders of at least 25% in principal amount of all outstanding
securities of the relevant series must make a written request that the
trustee take action because of the default, and must offer
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reasonable indemnity to the trustee against the cost and other liabilities
of taking that action.
o The trustee must have not taken action for 60 days after receipt of the
above notice and offer of indemnity.
However, you are entitled at any time to bring a lawsuit for the payment of
money due on your security after its due date.
We will furnish to the trustee every year a written statement of certain of
our officers certifying that to their knowledge we are in compliance with the
applicable indenture and the debt securities, or else specifying any default.
Modification of an Indenture
There are three types of changes we can make to the indentures and the debt
securities:
Changes Requiring Your Approval. First, there are changes we cannot make to
your debt securities without your specific approval. Following is a list of
those types of changes:
o change the stated maturity of the principal or interest on a debt security,
o reduce any amounts due on a debt security,
o reduce the amount of principal payable upon acceleration of the maturity of
a debt security following a default,
o change the place or currency of payment on a debt security,
o impair your right to sue for payment,
o modify the subordination provisions, if any, in a manner that is adverse to
you,
o reduce the percentage of holders of debt securities whose consent is needed
to modify or amend an indenture,
o reduce the percentage of holders of debt securities whose consent is needed
to waive compliance with certain provisions of an indenture or to waive
certain defaults, and
o modify any other aspect of the provisions dealing with modification and
waiver of an indenture.
Changes Requiring a Majority Vote. The second type of change to an indenture
and the debt securities is the kind that requires a vote in favor by holders of
debt securities owning a majority of the principal amount of the particular
series affected. Most changes fall into this category, except for clarifying
changes and certain other changes that would not adversely affect holders of the
debt securities. We require the same vote to obtain a waiver of a past default.
However, we cannot obtain a waiver of a payment default or any other aspect of
an indenture or the debt securities listed in the first category described under
"--Changes Requiring Your Approval" unless we obtain your individual consent to
the waiver.
Changes Not Requiring Approval. The third type of change does not require
any vote by holders of debt securities. This type is limited to clarifications
and certain other changes that would not adversely affect holders of the debt
securities.
Further Details Concerning Voting. When taking a vote, we will use the
following rules to decide how much principal amount to attribute to a debt
security:
o For original issue discount securities, we will use the principal amount
that would be due and payable on the voting date if the maturity of the debt
securities were accelerated to that date because of a default.
o For debt securities whose principal amount is not known, we will use a
special rule for that security described in the applicable prospectus
supplement. An example is if the principal amount is based on an index.
o For debt securities denominated in one or more foreign currencies or
currency units, we will use the U.S. dollar equivalent.
Debt securities are not considered outstanding, and therefore not eligible
to vote, if we have deposited or set aside in trust for you money for their
payment or redemption or if we or one of our affiliates own them. Debt
securities are also not eligible to vote if they have been fully defeased as
described immediately below under "--Discharge, Defeasance and Covenant
Defeasance--Full Defeasance."
We are generally entitled to set any day as a record date for the purpose of
determining the holders of outstanding securities entitled to vote or
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take other action under an indenture. If we set a record date, only persons who
are holders of outstanding securities of the applicable series on the record
date may vote or take the action. Moreover, the applicable holders must vote or
take the action within 180 days following the record date or another period that
we may specify. We may shorten or lengthen this period from time to time.
Discharge, Defeasance and Covenant Defeasance
Discharge. We may discharge some obligations to holders of any series of
debt securities that either have become due and payable or will become due and
payable within one year, or scheduled for redemption within one year, by
irrevocably depositing with the trustee, in trust, funds in the applicable
currency in an amount sufficient to pay the debt securities, including any
premium and interest.
Full Defeasance. We can, under particular circumstances, effect a full
defeasance of your series of debt securities. By this we mean we can legally
release ourselves from any payment or other obligations on the debt securities
if we put in place the following arrangements to repay you:
o We must deposit in trust for your benefit and the benefit of all other
direct holders of the debt securities a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on the debt
securities on their various due dates.
o The current federal tax law must be changed or an IRS ruling must be issued
permitting the above deposit without causing you to be taxed on the debt
securities any differently than if we did not make the deposit and just
repaid the debt securities ourselves. Under current federal tax law, the
deposit and our legal release from the debt securities would be treated as
though we took back your debt securities and gave you your share of the cash
and notes or bonds deposited in trust. In that event, you could recognize
gain or loss on the debt securities you give back to us.
o We must deliver to the trustee a legal opinion confirming the tax law change
described above.
If we did accomplish full defeasance, you would have to rely solely on the
trust deposit for repayment on the debt securities. You could not look to us for
repayment in the unlikely event of any shortfall. Conversely, the trust deposit
would most likely be protected from claims of our lenders and other creditors if
we ever become bankrupt or insolvent. You would also be released from any
subordination provisions.
Covenant Defeasance. Under current federal tax law, we can make the same
type of deposit described above and be released from some of the restrictive
covenants in the debt securities. This is called "covenant defeasance." In that
event, you would lose the protection of those restrictive covenants but would
gain the protection of having money and securities set aside in trust to repay
the securities and you would be released from any subordination provisions. In
order to achieve covenant defeasance, we must do the following:
o We must deposit in trust for your benefit and the benefit of all other
direct holders of the debt securities a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on the debt
securities on their various due dates.
o We must deliver to the trustee a legal opinion confirming that under current
federal income tax law we may make the above deposit without causing you to
be taxed on the debt securities any differently than if we did not make the
deposit and just repaid the debt securities ourselves.
If we accomplish covenant defeasance, the following provisions of an
indenture and the debt securities would no longer apply:
o Any covenants applicable to the series of debt securities and described in
the applicable prospectus supplement.
o Any subordination provisions.
o Certain events of default relating to breach of covenants and acceleration
of the maturity of other debt set forth in any prospectus supplement.
If we accomplish covenant defeasance, you can still look to us for repayment
of the debt securities if there were a shortfall in the trust deposit. If one of
the remaining events of default occurs, for example, our bankruptcy, and the
debt securities become immediately due and payable, there may be a shortfall.
Depending on the event causing the default, you may not be able to obtain
payment of the shortfall.
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Subordination
We will set forth in the applicable prospectus supplement the terms and
conditions, if any, upon which any series of senior subordinated securities or
subordinated securities is subordinated to debt securities of another series or
to other indebtedness of ours. The terms will include a description of:
o the indebtedness ranking senior to the debt securities being offered,
o the restrictions on payments to the holders of the debt securities being
offered while a default with respect to the senior indebtedness is
continuing,
o the restrictions, if any, on payments to the holders of the debt securities
being offered following an event of default, and
o provisions requiring holders of the debt securities being offered to remit
some payments to holders of senior indebtedness.
Global Securities
If so set forth in the applicable prospectus supplement, we may issue the
debt securities of a series in whole or in part in the form of one or more
global securities that will be deposited with a depositary identified in the
prospectus supplement. We may issue global securities in either registered or
bearer form and in either temporary or permanent form. The specific terms of the
depositary arrangement with respect to any series of debt securities will be
described in the prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
The description below summarizes the more important terms of our capital
stock. Because this section is a summary, it does not describe every aspect of
the capital stock. This summary is subject to and qualified in its entirety by
reference to the provisions of our Restated Certificate of Incorporation, as
amended, including by any applicable Certificates of Designation. We refer to it
as the restated certificate. We have incorporated by reference a copy of the
restated certificate as an exhibit to the registration statement of which this
prospectus is a part. This summary is subject to and qualified by reference to
the description of the particular terms of your series of preferred stock
described in the applicable prospectus supplement.
General
Our authorized capital stock consists of 20,000,000 shares of preferred
stock, $.01 par value per share, 500,000,000 shares of Class A common stock,
$.01 par value per share, 50,000,000 shares of Class B common stock, $.01 par
value per share, and 10,000,000 shares of Class C common stock, $.01 par value
per share.
Preferred Stock
General. Our board of directors will determine the designations,
preferences, limitations and relative rights of the 20,000,000 authorized and
unissued shares of preferred stock, including:
o the distinctive designation of each series and the number of shares that
will constitute the series,
o the voting rights, if any, of shares of the series,
o the dividend rate on the shares of the series, any restriction, limitation
or condition upon the payment of the dividends, whether dividends will be
cumulative, and the dates on which dividends are payable,
o the prices at which, and the terms and conditions on which, the shares of
the series may be redeemed, if the shares are redeemable,
o the purchase or sinking fund provisions, if any, for the purchase or
redemption of shares of the series,
o any preferential amount payable upon shares of the series upon our
liquidation or the distribution of our assets,
o if the shares are convertible, the price or rates of conversion at which,
and the terms and conditions on which, the shares of the series may be
converted into other securities, and
o whether the series can be exchanged, at our option, into debt securities,
and the terms and conditions of any permitted exchange.
The issuance of preferred stock, or the issuance of rights to purchase
preferred stock, could discourage an unsolicited acquisition proposal. In
addition, the rights of holders of common stock will be subject to, and may be
adversely affected by, the rights of
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holders of any preferred stock that we may issue in the future.
The following description of the preferred stock sets forth some general
terms and provisions of the preferred stock to which a prospectus supplement may
relate. The statements below describing the preferred stock are in all respects
subject to and qualified in their entirety by reference to the applicable
provisions of our restated certificate, including any applicable certificates of
designation, and our by-laws.
The prospectus supplement will describe the specific terms as to each
issuance of preferred stock, including:
o the number of shares of the preferred stock offered,
o the offering price of the preferred stock,
o the dividend rate, when dividends will be paid, or the method of determining
the dividend rate if it is based on a formula or not otherwise fixed,
o the date from which dividends on the preferred stock shall accumulate,
o the provisions for any auctioning or remarketing, if any, of the preferred
stock,
o the provision, if any, for redemption or a sinking fund,
o the liquidation preference per share,
o any listing of the preferred stock on a securities exchange,
o whether the preferred stock will be convertible and, if so, the security
into which it is convertible and the terms and conditions of conversion,
including the conversion price or the manner of determining it,
o whether interests in the preferred stock will be represented by depositary
shares as more fully described below under "Description of Depositary
Shares,"
o a discussion of federal income tax considerations,
o the relative ranking and preferences of the preferred stock as to dividend
and liquidation rights,
o any limitations on issuance of any preferred stock ranking senior to or on a
parity with the series of preferred stock being offered as to dividend and
liquidation rights,
o any limitations on direct or beneficial ownership and restrictions on
transfer, and
o any other specific terms, preferences, rights, limitations or restrictions
of the preferred stock.
As described under "Description of Depositary Shares," we may, at our
option, elect to offer depositary shares evidenced by depositary receipts. If we
elect to do this, each depositary receipt will represent a fractional interest
in a share of the particular series of the preferred stock issued and deposited
with a depositary. The applicable prospectus supplement will specify that
fractional interest.
Rank. Unless our board of directors otherwise determines and we so specify
in the applicable prospectus supplement, we expect that the preferred stock
will, with respect to dividend rights and rights upon liquidation, rank senior
to all common stock.
Dividends. Holders of preferred stock of each series will be entitled to
receive cash and/or stock dividends at the rates and on the dates shown in the
applicable prospectus supplement. Even though the preferred stock may specify a
fixed dividend, our board of directors must declare those dividends and they may
be paid only out of assets of legally available for payment. Each dividend will
be payable to holders of record as they appear on our stock transfer books on
the record dates fixed by our board of directors. In the case of preferred stock
represented by depositary receipts, the records of the depositary referred to
under "Description of Depositary Shares" will determine the persons to whom
dividends are payable.
Dividends on any series of preferred stock (we refer to that series, for
ease of reference, as the "Applicable Series") may be cumulative or
noncumulative, as provided in the applicable prospectus supplement. Cumulative
dividends will be cumulative from and after the date shown in the applicable
prospectus supplement. If our board of directors fails to declare a dividend on
any Applicable Series that is noncumulative, the holders
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will have no right to receive, and we will have no obligation to pay, a dividend
in respect of the applicable dividend period, whether or not dividends on that
series are declared payable in the future.
If the Applicable Series is entitled to a cumulative dividend, we may not
declare, or pay or set aside for payment, any full dividends on any other series
of preferred stock ranking, as to dividends, on a parity with or junior to the
Applicable Series, unless we declare, and either pay or set aside for payment,
full cumulative dividends on the Applicable Series for all past dividend periods
and the then current dividend period. If the Applicable Series does not have a
cumulative dividend, we must declare, and pay or set aside for payment, full
dividends for the then current dividend period only. When dividends are not
paid, or set aside for payment, in full upon any Applicable Series and the
shares of any other series ranking on a parity as to dividends with the
Applicable Series, we must declare, and pay or set aside for payment, all
dividends upon the Applicable Series and any other parity series
proportionately, in accordance with accrued and unpaid dividends of the several
series. For these purposes, accrued and unpaid dividends do not include unpaid
dividend periods on noncumulative preferred stock. No interest will be payable
in respect of any dividend payment that may be in arrears.
Except as provided in the immediately preceding paragraph, unless we
declare, and pay or set aside for payment, full cumulative dividends, including
for the then current period, on any cumulative Applicable Series, we may not
declare, or pay or set aside for payment, any dividends or other distributions
upon common stock or any other capital stock ranking junior to or on a parity
with the Applicable Series as to dividends or upon liquidation. The foregoing
restriction does not apply to dividends or other distributions paid in common
stock or other capital stock ranking junior to the Applicable Series as to
dividends and upon liquidation. If the Applicable Series is noncumulative, we
need only declare, and pay or set aside for payment, the dividend for the then
current period, before declaring dividends or distributions on common stock or
junior or parity securities. In addition, under the circumstances that we could
not declare a dividend, we may not redeem, purchase or otherwise acquire for any
consideration any common stock or other parity or junior capital stock, except
upon conversion into or exchange for common stock or other junior capital stock.
We may, however, make purchases and redemptions otherwise prohibited pursuant to
certain redemptions or pro rata offers to purchase the outstanding shares of the
Applicable Series and any other parity series of preferred stock.
We will credit any dividend payment made on an Applicable Series first
against the earliest accrued but unpaid dividend due with respect to the series.
Redemption. We may have the right and/or may be required to redeem the
preferred stock, as a whole or in part, in each case upon the terms, if any, and
at the times and at the redemption prices shown in the applicable prospectus
supplement.
Liquidation Preference. The applicable prospectus supplement will show the
liquidation preference of the Applicable Series. Upon any voluntary or
involuntary liquidation, before any distribution may be made to the holders of
common stock or any other capital stock ranking junior in the distribution of
assets upon any liquidation to the Applicable Series, the holders of the
Applicable Series will be entitled to receive, out of assets of ours legally
available for distribution to stockholders, liquidating distributions in the
amount of the liquidation preference, plus an amount equal to all dividends
accrued and unpaid. In the case of a noncumulative Applicable Series, accrued
and unpaid dividends include only the then current dividend period. After
payment of the full amount of the liquidating distributions to which they are
entitled, the holders of preferred stock will have no right or claim to any of
our remaining assets. If liquidating distributions shall have been made in full
to all holders of preferred stock, our remaining assets will be distributed
among the holders of any other capital stock ranking junior to the preferred
stock upon liquidation, according to their rights and preferences and in each
case according to their number of shares.
If, upon any voluntary or involuntary liquidation, our available assets are
insufficient to pay the amount of the liquidating distributions on all
outstanding shares of an Applicable Series and the corresponding amounts payable
on all shares of other capital stock ranking on a parity in the distribution of
assets with the Applicable Series, then the holders of the Applicable Series and
all other equally ranking capital stock shall share ratably in the distribution
in proportion to the full liquidating distributions to which they would
otherwise be entitled.
For these purposes, our consolidation or merger with or into any other
corporation or other entity, or the sale, lease or conveyance of all or
substantially all of our property or business, will not be deemed to constitute
our liquidation.
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Voting Rights. Holders of the preferred stock will not have any voting
rights, except as shown below or as otherwise from time to time required by law
or as indicated in the applicable prospectus supplement.
Conversion Rights. We will show in the applicable prospectus supplement the
terms and conditions, if any, upon which you may, or we may require you to,
convert shares of any series of preferred stock into common stock or any other
class or series of capital stock will be shown. The terms will include the
number of shares of common stock or other securities into which the shares are
convertible, the conversion price, or the manner of determining it, the
conversion period, provisions as to whether conversion will be at the option of
the holders of the series or at our option, the events requiring an adjustment
of the conversion price, and provisions affecting conversion upon the redemption
of shares of the series.
Our Exchange Rights. We will show in the applicable prospectus supplement
the terms and conditions, if any, upon which we can require you to exchange
shares of any series of preferred stock for junior subordinated debt or other
debt securities. If an exchange is required, you will receive junior
subordinated debt or other debt securities with a principal amount equal to the
liquidation preference of the applicable series of preferred stock. The other
terms will include the terms and provisions of the junior subordinated debt or
other debt securities which will not be materially less favorable to you than
those of the series of preferred stock being exchanged.
Common Stock
Dividends. Holders of record of shares of common stock on the record date
fixed by our board of directors are entitled to receive dividends as declared by
our board of directors out of funds legally available for that purpose. No
dividends may be declared or paid in cash or property on any share of any class
of common stock, however, unless simultaneously the same dividend is declared or
paid on each share of the other classes of common stock. Dividends in the form
of shares of stock of any company, including our company or any of our
subsidiaries, are excepted from that requirement. In that case, the shares may
differ as to voting rights to the extent that voting rights now differ among the
different classes of common stock. In the case of any dividend payable in shares
of common stock, holders of each class of common stock are entitled to receive
the same percentage dividend, payable in shares of that class, as the holders of
each other class. Dividends and other distributions on common stock are also
subject to the rights of holders of any series of preferred stock that may be
outstanding from time to time and under our credit facilities. See "--Dividend
Restrictions" below.
Voting Rights. Except as otherwise required by law and in the election of
directors, and subject to the rights of holders of any series of preferred stock
that may be outstanding from time to time, holders of shares of Class A common
stock and Class B common stock have the exclusive voting rights and will vote as
a single class on all matters submitted to a vote of the stockholders. Each
share of Class A common stock is entitled to one vote and each share of Class B
common stock is entitled to ten votes. The holders of the Class A common stock,
voting as a separate class, have the right to elect two independent directors.
The Class C common stock is nonvoting, except as otherwise required by Delaware
corporate law.
Delaware corporate law requires the affirmative vote of the holders of a
majority of the outstanding shares of any class or series of common stock to
approve, among other things, a change in the designations, preferences and
limitations of the shares of that class or series. The restated certificate,
however, requires the affirmative vote of the holders of not less than 66 2/3%
of the Class A common stock and Class B common stock, voting as a single class,
to amend most of the provisions of the restated certificate, including those
relating to the provisions of the various classes of common stock,
indemnification of directors, exoneration of directors for certain acts and the
super-majority provision.
The restated certificate:
o limits the aggregate voting power of Steven B. Dodge and his controlled
entities to 49.99% of the aggregate voting power of all shares of capital
stock entitled to vote generally for the election of directors, less the
voting power represented by the shares of Class B common stock acquired by
Thomas H. Stoner, a director, and purchasers affiliated with him in a
January 1998 private offering and owned by them or certain affiliates,
o prohibits future issuances of Class B common stock, except upon exercise of
then outstanding options and pursuant to stock dividends or stock splits,
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o limits transfers of Class B common stock to permitted transferees,
o provides for automatic conversion of the Class B common stock to Class A
common stock if the aggregate voting power of Mr. Dodge, Mr. Stoner and
their respective controlled entities falls below 21.3%, and
o requires the holders of a majority of Class A common stock to approve
amendments adversely affecting the Class A common stock.
Conversion Provisions. Shares of Class B common stock and Class C common
stock are convertible, at any time at the option of the holder, on a share for
share basis into shares of Class A common stock. The present owner of Class C
common stock can convert that stock only upon the occurrence of a conversion
event or with the consent of our board of directors. Shares of Class B common
stock automatically convert into shares of Class A common stock upon any sale,
transfer, assignment or other disposition other than (a) to permitted
transferees, or (b) pursuant to pledges but not to the pledgee upon foreclosure.
Permitted transferees include certain family members and other holders of Class
B common stock.
Liquidation Rights. Upon our liquidation, dissolution or winding up, the
holders of each class of common stock are entitled to share ratably in all
assets available for distribution after payment in full of creditors and payment
in full to any holders of the preferred stock then outstanding of any amount
required to be paid to them.
Other Provisions. The holders of common stock are not entitled to preemptive
or subscription rights. The shares of common stock presently outstanding are
validly issued, fully paid and nonassessable.
In any merger, consolidation or business combination, the holders of each
class of common stock must receive the identical consideration to that received
by holders of each other class of common stock. However, if shares of capital
stock or other securities of any other company are distributed, they may differ
as to voting rights to the same extent that voting rights then differ among the
different classes of our common stock.
No class of common stock may be subdivided, consolidated, reclassified or
otherwise changed unless, concurrently, the other classes of common stock are
subdivided, consolidated, reclassified or otherwise changed in the same
proportion and in the same manner.
Dividend Restrictions. Our credit facilities prohibit our borrower
subsidiaries from paying cash dividends or distributions, or from purchasing or
otherwise acquiring their capital stock or other equity interests. However,
beginning on April 15, 2004, if no default exists or would be created under the
credit facilities, our borrower subsidiaries may pay cash dividends or make
other distributions of up to 50% of excess cash flow, for the preceding calendar
year.
Delaware Business Combination Provisions. Under Delaware corporate law,
certain business combinations, including the issuance of equity securities,
between a Delaware corporation and any "interested stockholder" must be approved
by the holders of at least 66 2/3% of the voting stock not owned by the
interested stockholder if it occurs within three years of the date the person
became an interested stockholders. The voting requirement does not apply,
however, if, before the acquisition, the corporation's board of directors
approved either the business combination or the transaction which resulted in
the person becoming an interested stockholder. "Interested stockholder" means
any person who owns, directly or indirectly, 15.0% or more of the voting power
of the corporation's shares of capital stock. The provision does not apply to
Mr. Dodge because our board of directors approved the transaction pursuant to
which he became an interested stockholder.
Listing of Class A Common Stock. Our Class A common stock is traded on the
NYSE under the symbol "AMT."
Transfer Agent and Registrar. The transfer agent and registrar for our
common stock is Harris Trust and Savings Bank, 311 West Monroe Street, Chicago,
Illinois 60606. Its telephone number is (312) 461-4600.
DESCRIPTION OF DEPOSITARY SHARES
General. The description shown below and in any applicable prospectus
supplement of certain provisions of any deposit agreement and of the depositary
shares and depositary receipts representing depositary shares does not purport
to be complete and is subject to and qualified in its entirety by reference to
the forms of deposit agreement and depositary receipts relating to each
applicable series of preferred stock. The deposit agreement and the depositary
receipts contain the full legal text of the matters
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described in this section. We will file a copy of those documents with the SEC
at or before the time of the offering of the applicable series of preferred
stock. This summary also is subject to and qualified by reference to the
description of the particular terms of your series of depositary shares
described in the applicable prospectus supplement.
We may, at our option, elect to offer fractional interests in shares of
preferred stock, rather than shares of preferred stock. If we exercise this
option, we will appoint a depositary to issue depositary receipts representing
those fractional interests. Preferred stock of each series represented by
depositary shares will be deposited under a separate deposit agreement between
us and the depositary. The prospectus supplement relating to a series of
depositary shares will show the name and address of the depositary. Subject to
the terms of the applicable deposit agreement, each owner of depositary shares
will be entitled to all of the dividend, voting, conversion, redemption,
liquidation and other rights and preferences of the preferred stock represented
by those depositary shares.
The depositary shares will be evidenced by depositary receipts issued
pursuant to the applicable deposit agreement. Upon surrender of depositary
receipts at the office of the depositary, and upon payment of the charges
provided in and subject to the terms of the deposit agreement, a holder of
depositary shares is entitled to receive the shares of preferred stock
underlying the surrendered depositary receipts.
Dividends and Other Distributions. A depositary will be required to
distribute all cash dividends or other cash distributions received in respect of
the applicable preferred stock to the record holders of depositary receipts
evidencing the related depositary shares in proportion to the number of
depositary receipts owned by the holders. Fractions will be rounded down to the
nearest whole cent.
If the distribution is other than in cash, a depositary will be required to
distribute property received by it to the record holders of depositary receipts
entitled thereto, unless the depositary determines that it is not feasible to
make the distribution. In that case, the depositary may, with our approval, sell
the property and distribute the net proceeds from the sale to the holders.
No distributions will be made on any depositary shares that represent
preferred stock converted or exchanged. The deposit agreement will also contain
provisions relating to the manner in which any subscription or similar rights
offered by us to holders of the preferred stock will be made available to
holders of depositary shares. All distributions are subject to obligations of
holders to file proofs, certificates and other information and to pay certain
charges and expenses to the depositary.
Withdrawal Of Preferred Stock. You may receive the number of whole shares of
your series of preferred stock and any money or other property represented by
those depositary receipts after surrendering the depositary receipts at the
corporate trust office of the depositary. Partial shares of preferred stock will
not be issued. If the depositary shares which you surrender exceed the number of
depositary shares that represent the number of whole shares of preferred stock
you wish to withdraw, then the depositary will deliver to you at the same time a
new depositary receipt evidencing the excess number of depositary shares. Once
you have withdrawn your preferred stock, you will not be entitled to re-deposit
that preferred stock under the deposit agreement in order to receive depositary
shares. We do not expect that there will be any public trading market for
withdrawn shares of preferred stock.
Redemption of Depositary Shares. If we redeem a series of the preferred
stock underlying the depositary shares, the depositary shares will be redeemed
from the proceeds received by the depositary resulting from the redemption, in
whole or in part, of the series held by the depositary. The depositary will mail
notice of redemption not less than 30 and not more than 60 days before the date
fixed for redemption to the record holders of the depositary receipts evidencing
the depositary shares we are redeeming at their addresses appearing in the
depositary's books. The redemption price per depositary share will be equal to
the applicable fraction of the redemption price per share payable with respect
to the series of the preferred stock. Whenever we redeem shares of preferred
stock held by the depositary, the depositary will redeem as of the same
redemption date the number of depositary shares relating to shares of preferred
stock so redeemed. If we are redeeming less than all of the depositary shares,
the depositary will select the depositary shares we are redeeming by lot or pro
rata as the depositary may determine.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be deemed outstanding. All rights of the holders of
the depositary shares and the related depositary receipts will cease at that
time, except the right to receive the money or other property to which the
holders of
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depositary shares were entitled upon redemption. Receipt of the money or other
property is subject to surrender to the depositary of the depositary receipts
evidencing the redeemed depositary shares.
Voting of the Preferred Stock. Upon receipt of notice of any meeting at
which the holders of the applicable preferred stock are entitled to vote, a
depositary will be required to mail the information contained in the notice of
meeting to the record holders of the applicable depositary receipts. Each record
holder of depositary receipts on the record date, which will be the same date as
the record date for the preferred stock, will be entitled to instruct the
depositary as to the exercise of the voting rights pertaining to the amount of
preferred stock represented by the holder's depositary shares. The depositary
will try, as practical, to vote the shares as you instruct. We will agree to
take all reasonable action that the depositary deems necessary in order to
enable it to do so. If you do not instruct the depositary how to vote your
shares, the depositary will abstain from voting those shares.
Liquidation Preference. Upon our liquidation, whether voluntary or
involuntary, the holders of each depositary share will be entitled to the
fraction of the liquidation preference accorded each share of preferred stock
represented by the depositary share, as shown in the applicable prospectus
supplement.
Conversion or Exchange of Preferred Stock. The depositary shares will not
themselves be convertible into or exchangeable for common stock, preferred stock
or any of our other securities or property. Nevertheless, if so specified in the
applicable prospectus supplement, the depositary receipts may be surrendered by
holders to the applicable depositary with written instructions to it to instruct
us to cause conversion of the preferred stock represented by the depositary
shares. Similarly, if so specified in the applicable prospectus supplement, we
may require you to surrender all of your depositary receipts to the applicable
depositary upon our requiring the exchange of the preferred stock represented by
the depositary shares into our debt securities. We will agree that, upon receipt
of the instruction and any amounts payable in connection with the conversion or
exchange, we will cause the conversion or exchange using the same procedures as
those provided for delivery of preferred stock to effect the conversion or
exchange. If you are converting only a part of the depositary shares, the
depositary will issue you a new depositary receipt for any unconverted
depositary shares.
Taxation. As owner of depositary shares, you will be treated for U.S.
federal income tax purposes as if you were an owner of the series of preferred
stock represented by the depositary shares. Therefore, you will be required to
take into account for U.S. federal income tax purposes income and deductions to
which you would be entitled if you were a holder of the underlying series of
preferred stock. In addition:
o no gain or loss will be recognized for U.S. federal income tax purposes upon
the withdrawal of preferred stock in exchange for depositary shares as
provided in the deposit agreement,
o the tax basis of each share of preferred stock to you as exchanging owner of
depositary shares will, upon exchange, be the same as the aggregate tax
basis of the depositary shares exchanged for the preferred stock, and
o if you held the depositary shares as a capital asset at the time of the
exchange for preferred stock, the holding period for shares of the preferred
stock will include the period during which you owned the depositary shares.
Amendment and Termination of a Deposit Agreement. We and the applicable
depositary are permitted to amend the provisions of the depositary receipts and
the deposit agreement. However, the holders of at least a majority of the
applicable depositary shares then outstanding must approve any amendment that
adds or increases fees or charges or prejudices an important right of holders.
Every holder of an outstanding depositary receipt at the time any amendment
becomes effective, by continuing to hold the receipt, will be bound by the
applicable deposit agreement as amended.
Any deposit agreement may be terminated by us upon not less than 30 days'
prior written notice to the applicable depositary if a majority of each series
of preferred stock affected by the termination consents to the termination. When
that occurs, the depositary will be required to deliver or make available to
each holder of depositary receipts, upon surrender of the depositary receipts
held by the holder, the number of whole or fractional shares of preferred stock
as are represented by the depositary shares evidenced by the depositary
receipts, together with any other property held by the depositary with respect
to the depositary receipts. In addition, a deposit agreement will automatically
terminate if:
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o all depositary shares outstanding it shall have been redeemed,
o there shall have been a final distribution in respect of the related
preferred stock in connection with our liquidation and the distribution
shall have been made to the holders of depositary receipts evidencing the
depositary shares underlying the preferred stock, or
o each of the shares of related preferred stock shall have been converted or
exchanged into securities not represented by depositary shares.
Charges of a Depositary. We will pay all transfer and other taxes and
governmental charges arising solely from the existence of a deposit agreement.
In addition, we will pay the fees and expenses of a depositary in connection
with the initial deposit of the preferred stock and any redemption of preferred
stock. However, holders of depositary receipts will pay any transfer or other
governmental charges and the fees and expenses of a depositary for any duties
the holders request to be performed that are outside of those expressly provided
for in the applicable deposit agreement.
Resignation and Removal of Depositary. A depositary may resign at any time
by delivering to us notice of its election to do so. In addition, we may at any
time remove a depositary. Any resignation or removal will take effect when we
appoint a successor depositary and it accepts the appointment. We must appoint a
successor depositary within 60 days after delivery of the notice of resignation
or removal. A depositary must be a bank or trust company having its principal
office in the United States that has a combined capital and surplus of at least
$50 million.
Miscellaneous. A depositary will be required to forward to holders of
depositary receipts any reports and communications from us that are received by
it with respect to the related preferred stock.
Neither a depositary nor we will be liable if it is prevented from or
delayed in performing its obligations under a deposit agreement by law or any
circumstances beyond its control. Our obligations and those of the depositary
under a deposit agreement will be limited to performing their duties in good
faith and without gross negligence or willful misconduct. Neither we nor any
depositary will be obligated to prosecute or defend any legal proceeding in
respect of any depositary receipts, depositary shares or related preferred stock
unless satisfactory indemnity is furnished. We and each depositary will be
permitted to rely on written advice of counsel or accountants, on information
provided by persons presenting preferred stock for deposit, by holders of
depositary receipts, or by other persons believed in good faith to be competent
to give the information, and on documents believed in good faith to be genuine
and signed by a proper party.
If a depositary receives conflicting claims, requests or instructions from
any holders of depositary receipts, on the one hand, and us, on the other hand,
the depositary shall be entitled to act on the claims, requests or instructions
received from us.
DESCRIPTION OF WARRANTS
We may issue, together with any other securities being offered or
separately, warrants entitling the holder to purchase from or sell to us, or to
receive from us the cash value of the right to purchase or sell, debt
securities, preferred stock, depositary shares or common stock. We and a warrant
agent will enter a warrant agreements pursuant to which the warrants will be
issued. The warrant agent will act solely as our agent in connection with the
warrants and will not assume any obligation or relationship of agency or trust
for or with any holders or beneficial owners of warrants. We will file a copy of
the warrants and the warrant agreement with the SEC at or before the time of the
offering of the applicable series of warrants.
In the case of each series of warrants, the applicable prospectus supplement
will describe the terms of the warrants being offered thereby, including the
following, if applicable:
o the offering price,
o the number of warrants offered,
o the securities underlying the warrants,
o the exercise price, the procedures for exercise of the warrants and the
circumstances, if any, that will deem the warrants to be automatically
exercised,
o the date on which the warrants will expire,
o federal income tax consequences,
o the rights, if any, we have to redeem the warrant,
o the name of the warrant agent, and
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o the other terms of the warrants.
Warrants may be exercised at the appropriate office of the warrant agent or
any other office indicated in the applicable prospectus supplement. Before the
exercise of warrants, holders will not have any of the rights of holders of the
securities purchasable upon exercise and will not be entitled to payments made
to holders of the securities.
The warrant agreements may be amended or supplemented without the consent of
the holders of the warrants to which it applies to effect changes that are not
inconsistent with the provisions of the warrants and that do not adversely
affect the interests of the holders of the warrants. However, any amendment that
materially and adversely alters the rights of the holders of warrants will not
be effective unless the holders of at least a majority of the applicable
warrants then outstanding approve the amendment. Every holder of an outstanding
warrant at the time any amendment becomes effective, by continuing to hold the
warrant, will be bound by the applicable warrant agreement as amended thereby.
The prospectus supplement applicable to a particular series of warrants may
provide that certain provisions of the warrants, including the securities for
which they may be exercisable, the exercise price, and the expiration date may
not be altered without the consent of the holder of each warrant.
PLAN OF DISTRIBUTION
We may sell the offered securities to one or more underwriters for public
offering and sale by them. We may also sell the offered securities to investors
directly or through agents. We will name any underwriter or agent involved in
the offer and sale of the offered securities in the applicable prospectus
supplement.
The distribution of offered securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to the market
prices, or at negotiated prices. In connection with the sale of offered
securities, underwriters or agents may receive or be deemed to have received
compensation from us or from purchasers in the form of underwriting discounts,
concessions or commissions. Underwriters may sell offered securities to or
through dealers, and dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters or from purchasers.
We will show any underwriting compensation paid by us to underwriters or
agents in connection with the offering of offered securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers, in
the applicable prospectus supplement. Underwriters, dealers and agents
participating in the distribution of the offered securities may be deemed to be
underwriters. Any discounts, concessions and commissions received by them and
any profit realized by them on resale of the offered securities may be deemed to
be underwriting discounts and commissions, under the Securities Act of 1933.
Underwriters, dealers and agents may be entitled, under agreements entered into
with us, to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Act.
If so indicated in the applicable prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit offers by certain
institutions to purchase offered securities from us at the public offering price
shown in the applicable prospectus supplement pursuant to contracts providing
for payment and delivery on a future date or dates. Institutions with whom
contracts may be made include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions,
and other institutions. We are required to approve any contracts and the
institutions that may become
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parties to them. Any contracts will be subject to the condition that the
purchase by an institution of the offered securities will not at the time of
delivery be prohibited under the law of any jurisdiction in the United States to
which the institution is subject. If a portion of the offered securities is
being sold to underwriters, the contract may also be subject to the condition
that we will have sold to the underwriters the offered securities not sold for
delayed delivery. The underwriters and the other persons will not have any
responsibility in respect of the validity or performance of the contracts.
Unless otherwise specified in the related prospectus supplement, each series
of offered securities, other than shares of Class A common stock, will be a new
issue with no established trading market. Our Class A common stock is listed on
the NYSE and traded under the symbol "AMT." Any shares of Class A common stock
sold pursuant to a prospectus supplement will be listed on the NYSE, subject to
official notice of issuance. We may elect to list any other series or class of
offered securities on an exchange or on the Nasdaq National Market, but are not
obligated to do so. Any underwriters to whom offered securities are sold by us
for public offering and sale may make a market in those offered securities.
Underwriters will not be obligated to make any market, however, and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of or the trading markets for any offered securities.
Certain of the underwriters and their affiliates may engage in transactions
with and perform services for us in the ordinary course of business for which
they receive compensation.
The specific terms and manner of sale of the offered securities will be
shown or summarized in the applicable prospectus supplement.
VALIDITY OF THE OFFERED SECURITIES
Sullivan & Worcester LLP, Boston, Massachusetts, will pass upon the validity
of the offered securities for us. Norman A. Bikales, a member of the firm of
Sullivan & Worcester LLP, and as of May 26, 2000, was the owner of 11,000 shares
of our Class A common stock and 41,490 shares of Class B common stock and had
options to purchase 20,000 shares of Class A common stock at $10.00 per share
and 25,000 shares of Class A common stock at $23.813 per share. Mr. Bikales
and/or associates of that firm serve as secretary or assistant secretaries of
American Tower and certain of our subsidiaries.
EXPERTS
The consolidated financial statements of American Tower Corporation
incorporated in this prospectus by reference from American Tower Corporation's
annual report on Form 10-K for the year ended December 31, 1999 have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated herein by reference, and has been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
We are incorporating the following financial statements by reference in this
prospectus from our Form 8-K dated March 30, 2000:
o The consolidated financial statements of UNIsite, Inc. and subsidiaries as
of December 31, 1999 and 1998 and for the three years ended December 31,
1999 have been incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG LLP, independent certified
public accountants, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing.
o The consolidated financial statements of ICG Satellite Services, Inc. and
subsidiary as of November 30, 1999 and for the eleven months ended November
30, 1999 have been incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG LLP, independent certified
public accountants, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing.
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WHERE YOU CAN FIND
MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any reports, statements or other
information on file at the SEC's public reference room at 450 Fifth Street,
N.W., Washington, D.C. 20549. You can request copies of those documents upon
payment of a duplicating fee to the SEC. You may also review a copy of the
registration statement at the SEC's regional offices in Chicago, Illinois and
New York, New York. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the public reference rooms. You can review our
SEC filings and the registration statement by accessing the SEC's Internet site
at http://www.sec.gov.
DOCUMENTS INCORPORATED
BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus. Statements in this prospectus regarding the
contents of any contract or other document may not be complete. You should refer
to the copy of the contract or other document filed as an exhibit to the
registration statement. Later information filed with the SEC will update and
supersede information we have included or incorporated by reference in this
prospectus.
We incorporate by reference the documents listed below and any filings made
after the date of the original filing of the registration statement of which
this prospectus is a part made with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 until our offering is completed or
terminated:
o our Annual Report on Form 10-K for the fiscal year ended December 31, 1999,
o our Quarterly Report on Form 10-Q for the quarter ended March 31, 2000,
o our Current Reports on Form 8-K dated January 28, 2000, January 31, 2000,
February 9, 2000, February 24, 2000, March 14, 2000, March 30, 2000, April
13, 2000, May 15, 2000 and May 23, 2000, and
o the description of our Class A common stock contained in our registration
statement on Form 8-A (File No. 001-14195), filed on June 4, 1998.
We will provide you with a copy of the information we have incorporated by
reference, excluding exhibits other than those to which we specifically refer.
You may obtain this information at no cost by writing or telephoning us at: 116
Huntington Avenue, Boston, Massachusetts 02116, (617) 375-7500, Attention:
Director of Investor Relations.
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[LOGO]
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below is an estimate (except in the case of the registration fee) of
the amount of fees and expenses to be incurred in connection with the issuance
and distribution of the Offered Securities registered hereby, other than
underwriting discounts and commissions.
Registration fee under Securities Act............... $ 264,000
Blue sky fees and expenses.......................... 10,000
Accounting fees and expenses........................ 400,000
Legal fees and expenses............................. 400,000
Printing and engraving.............................. 200,000
Rating agencies fees................................ 100,000
Miscellaneous fees and expenses..................... 150,000
------------
Total: ......................................... $1,524,000
============
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Laws ("DGCL") provides, in
effect, that any person made a party to any action by reason of the fact that he
is or was a director, officer, employee or agent of American Tower Corporation
(the "Company") may and, in certain cases, must be indemnified by the Company
against, in the case of a non-derivative action, judgments, fines, amounts paid
in settlement and reasonable expenses (including attorney's fees), if in either
type of action he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company and, in a
non-derivative action, which involves a criminal proceeding, in which such
person had no reasonable cause to believe his conduct was unlawful. This
indemnification does not apply, in a derivative action, to matters as to which
it is adjudged that the director, officer, employee or agent is liable to the
Company, unless upon court order it is determined that, despite such
adjudication of liability, but in view of all the circumstances of the case, he
is fairly and reasonably entitled to indemnity for expenses.
Article XII of the Company's By-Laws provides that the Company shall
indemnify each person who is or was an officer or director of the Company to the
fullest extent permitted by Section 145 of the DGCL.
Article Sixth of the Company's restated certificate of incorporation states
than no director of the Company shall be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for (i) breach of the director's duty of loyalty to the Company or its
stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or knowing violation of law, (iii) liability under
Section 174 of the DGCL relating to certain unlawful dividends and stock
repurchases, or (iv) any transaction from which the director derived an improper
personal benefit.
Reference is made to the Underwriting Agreements (Exhibits 1.1 through 1.5
hereto) which may contain certain provisions for indemnification by the
underwriters of the Company, directors, officers and controlling persons under
certain circumstances.
Item 16. Exhibits.
Listed below are the exhibits which are filed as part of this Registration
Statement on Form S-3 (according to the number assigned to them in Item 601 of
Regulation S-K). Each exhibit marked by a (*) is to be filed
II-1
by amendment or incorporated by reference in connection with the offering of
Offered Securities, as appropriate.
Exhibit Description of Document Exhibit File No.
- -------- ------------------------ ----------------
No.
- ---
1.1 Form of Underwriting Agreement (for Debt Securities) *
1.2 Form of Underwriting Agreement (for Preferred Stock) *
1.3 Form of Underwriting Agreement (for Depositary Shares) *
1.4 Form of Underwriting Agreement (for Common Stock) *
1.5 Form of Underwriting Agreement (for Warrants) *
3.1 Restated Certificate of Incorporation, as amended, of the
Company as filed with the Secretary of State of the State of
Delaware on June 4, 1999 Incorporated by reference to Exhibit
3(i) from the Company's Quarterly
Report of Form 10-Q (File No. 001-
14195) filed on August 16, 1999
3.2 By-Laws, as amended, of the Company Filed herewith as Exhibit 3.2
4.1 Form of Senior Indenture Filed herewith as Exhibit 4.1
4.2 Form of Subordinated Indenture Filed herewith as Exhibit 4.2
4.3 Form of Senior Debt Security *
4.4 Form of Subordinated Debt Security *
4.5 Form of Deposit Agreement, including form of Depositary Receipt
for Depositary Shares *
4.6 Form of Certificate of Designation for Preferred Stock *
4.7 Form of Preferred Stock Certificate *
4.8 Form of Debt Warrant Agreement, including form of Debt Warrant *
4.9 Form of Preferred Stock Warrant Agreement, including form of
Preferred Stock Warrant *
4.10 Form of Common Stock Warrant Agreement, including form of
Common Stock Warrant *
5 Opinion of Sullivan & Worcester LLP Filed herewith as Exhibit 5
8 Tax Opinion of Sullivan & Worcester LLP *
12 Statement Regarding Computation of Ratios of Earnings to Fixed
Charges Filed herewith as Exhibit 12
23.1 Consent of Sullivan & Worcester LLP Contained in the opinion of Sullivan &
Worcester LLP filed herewith as part
of Exhibit 5
23.2 Consent of Deloitte & Touche LLP Filed herewith as Exhibit 23.2
23.3 Consent of KPMG LLP Filed herewith as Exhibit 23.3
23.4 Consent of KPMG LLP Filed herewith as Exhibit 23.4
24 Power of Attorney Filed herewith as page II-5 of the
Registration Statement
25 Statement of Eligibility of Trustee on Form T-1 *
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
II-2
forth in this registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) under the
Securities Act of 1933 if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in this registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement
or any material change to such information in this registration
statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions referred to in Item 15 of this
registration statement, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes:
(1) To file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of the Act.
(2) That for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of Prospectus filed as part
of this Registration Statement in
II-3
reliance upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this Registration Statement as of the
time it was effective.
(3) That for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be initial bona fide offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on the 26th
day of May, 2000.
AMERICAN TOWER CORPORATION
By: /s/ Steven B Dodge
Steven B. Dodge
Chairman of the Board, President and
Chief Executive Officer
The undersigned officers and directors of the Company hereby severally
constitute Joseph L. Winn, Justin D. Benincasa, Jonathan Black and Norman A.
Bikales, and each of them, acting singly, our true and lawful attorneys to sign
for us and in our names in the capacities indicated below the Company's
Registration Statement on Form S-3 relating to the registration of such
securities under the Securities Act of 1933, as amended, and any and all
amendments thereto, including without limitation any registration statement or
post-effective amendment thereof filed under and meeting the requirements of
Rule 462(b) under the Securities Act, hereby ratifying and confirming our
signatures as they may be signed by our attorneys to such Registration Statement
and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons on behalf of the
Company and in the capacities and on the dates indicated.
Signature Title Date
--------- - ----- ----
/s/ Steven B. Dodge Chairman, President, Chief May 26, 2000
Steven B. Dodge Executive Officer and Director
/s/ Joseph L. Winn Chief Financial Officer and May 26, 2000
Joseph L. Winn Treasurer
/s/ Justin D. Benincasa Vice President and Corporate May 26, 2000
Justin D. Benincasa Controller
________________________ Executive Vice President and May 26, 2000
Alan L. Box Director
________________________ Director May 26, 2000
Arnold L. Chavkin
/s/ Dean H. Eisner Director May 26, 2000
Dean H. Eisner
II-5
/s/ Jack D. Furst Director May 26, 2000
Jack D. Furst
/s/ J. Michael Gearon, Jr. Executive Vice President and May 26, 2000
J. Michael Gearon, Jr. Director
/s/ Fred R. Lummis Director May 26, 2000
Fred R. Lummis
________________________ Director May 26, 2000
Randall Mays
/s/ Thomas H. Stoner Director May 26, 2000
Thomas H. Stoner
________________________ Director May 26, 2000
Maggie Wilderotter
II-6
EXHIBIT INDEX
Listed below are the exhibits which are filed as part of this Registration
Statement on Form S-3 (according to the number assigned to them in Item 601 of
Regulation S-K). Each exhibit Marked by a (*) is to be filed by amendment or
incorporated by reference in connection with the offering of Offered Securities,
as appropriate. Exhibit numbers in parenthesis refer to the exhibit number in
the applicable filing.
Exhibit Description of Document Exhibit File No.
- -------- ------------------------ ----------------
No.
- ---
1.1 Form of Underwriting Agreement (for Debt Securities) *
1.2 Form of Underwriting Agreement (for Preferred Stock) *
1.3 Form of Underwriting Agreement (for Depositary Shares) *
1.4 Form of Underwriting Agreement (for Common Stock) *
1.5 Form of Underwriting Agreement (for Warrants) *
3.1 Restated Certificate of Incorporation, as amended, of the
Company as filed with the Secretary of State of the State of
Delaware on June 4, 1999 Incorporated by reference to Exhibit
3(i) from the Company's Quarterly
Report of Form 10-Q (File No. 001-
14195) filed on August 16, 1999
3.2 By-Laws, as amended, of the Company Filed herewith as Exhibit 3.2
4.1 Form of Senior Indenture Filed herewith as Exhibit 4.1
4.2 Form of Subordinated Indenture Filed herewith as Exhibit 4.2
4.3 Form of Senior Debt Security *
4.4 Form of Subordinated Debt Security *
4.5 Form of Deposit Agreement, including form of Depositary Receipt
for Depositary Shares *
4.6 Form of Certificate of Designation for Preferred Stock *
4.7 Form of Preferred Stock Certificate *
4.8 Form of Debt Warrant Agreement, including form of Debt Warrant *
4.9 Form of Preferred Stock Warrant Agreement, including form of
Preferred Stock Warrant *
4.10 Form of Common Stock Warrant Agreement, including form of
Common Stock Warrant *
5 Opinion of Sullivan & Worcester LLP Filed herewith as Exhibit 5
8 Tax Opinion of Sullivan & Worcester LLP *
12 Statement Regarding Computation of Ratios of Earnings to Fixed
Charges Filed herewith as Exhibit 12
23.1 Consent of Sullivan & Worcester LLP Contained in the opinion of Sullivan &
Worcester LLP filed herewith as part
of Exhibit 5
23.2 Consent of Deloitte & Touche LLP Filed herewith as Exhibit 23.2
23.3 Consent of KPMG LLP Filed herewith as Exhibit 23.3
23.4 Consent of KPMG LLP Filed herewith as Exhibit 23.4
24 Power of Attorney Filed herewith as page II-5 of the
Registration Statement
25 Statement of Eligibility of Trustee on Form T-1 *
EXHIBIT 3.2
BY-LAWS
OF
AMERICAN TOWER CORPORATION*
(a Delaware Corporation)
- --------
* As amended through May 24, 2000.
AMERICAN TOWER CORPORATION
(a Delaware Corporation)
BY-LAWS
TABLE OF CONTENTS
Page
ARTICLE I. OFFICES..................................................................... 1
SECTION 1. Registered Office........................................................... 1
SECTION 2. Other Offices............................................................... 1
ARTICLE II. SEAL........................................................................ 1
ARTICLE III. MEETINGS OF STOCKHOLDERS.................................................... 1
SECTION 1. Place of Meeting............................................................ 1
SECTION 2. Annual Meetings............................................................. 1
SECTION 3. Special Meetings............................................................ 1
SECTION 4. Notice...................................................................... 2
SECTION 5. Quorum and Adjournments..................................................... 2
SECTION 6. Votes; Proxies.............................................................. 2
SECTION 7. Organization................................................................ 3
SECTION 8. Consent of Stockholders in Lieu of Meeting.................................. 3
ARTICLE IV. DIRECTORS................................................................... 4
SECTION 1. Number...................................................................... 4
SECTION 2. Term of Office.............................................................. 5
SECTION 3. Vacancies................................................................... 5
SECTION 4. Removal by Stockholders..................................................... 5
SECTION 5. Meetings.................................................................... 5
SECTION 6. Votes....................................................................... 6
SECTION 7. Quorum and Adjournment...................................................... 6
SECTION 8. Compensation................................................................ 6
SECTION 9. Action By Consent of Directors.............................................. 6
ARTICLE V. COMMITTEES OF DIRECTORS..................................................... 6
SECTION 1. Executive Committee......................................................... 6
SECTION 2. Audit Committee............................................................. 7
SECTION 3. Other Committees............................................................ 8
SECTION 4. Term of Office.............................................................. 9
-i-
ARTICLE VI. OFFICERS.................................................................... 9
SECTION 1. Officers.................................................................... 9
SECTION 2. Vacancies................................................................... 9
SECTION 3. Chairman of the Board....................................................... 9
SECTION 4. President................................................................... 9
SECTION 5. Executive Vice Presidents and Vice Presidents............................... 9
SECTION 6. Secretary................................................................... 9
SECTION 7. Assistant Secretaries....................................................... 10
SECTION 8. Treasurer................................................................... 10
SECTION 9. Assistant Treasurers........................................................ 10
SECTION 10. Controller.................................................................. 10
SECTION 11. Assistant Controller........................................................ 10
SECTION 12. Subordinate Officers........................................................ 11
SECTION 13. Compensation................................................................ 11
SECTION 14. Removal..................................................................... 11
SECTION 15. Bonds....................................................................... 11
ARTICLE VII. CERTIFICATES OF STOCK....................................................... 11
SECTION 1. Form and Execution of Certificates.......................................... 11
SECTION 2. Transfer of Shares.......................................................... 12
SECTION 3. Closing of Transfer Books................................................... 12
SECTION 4. Fixing Date for Determination of Stockholders of Record..................... 12
SECTION 5. Lost or Destroyed Certificates.............................................. 13
SECTION 6. Uncertificated Shares....................................................... 14
ARTICLE VIII. EXECUTION OF DOCUMENTS...................................................... 14
SECTION 1. Execution of Checks, Notes, etc............................................. 14
SECTION 2. Execution of Contracts, Assignments, etc.................................... 14
SECTION 3. Execution of Proxies........................................................ 14
ARTICLE IX. INSPECTION OF BOOKS......................................................... 14
ARTICLE X. FISCAL YEAR................................................................. 15
ARTICLE XI. AMENDMENTS.................................................................. 15
ARTICLE XII. INDEMNIFICATION............................................................. 15
SECTION 1. Indemnification............................................................. 15
SECTION 2. Authorization............................................................... 16
SECTION 3. Expense Advance............................................................. 16
SECTION 4. Nonexclusivity.............................................................. 16
SECTION 5. Insurance................................................................... 17
SECTION 6. "The Corporation"........................................................... 17
SECTION 7. Other Indemnification....................................................... 17
-ii-
SECTION 8. Other Definitions........................................................... 17
SECTION 9. Continuation of Indemnification............................................. 17
SECTION 10. Amendment or Repeal......................................................... 18
-iii-
AMERICAN TOWER CORPORATION
(a Delaware Corporation)
BY-LAWS
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of the Corporation
shall be located in Wilmington, County of New Castle, State of Delaware, and the
name of the resident agent in charge thereof shall be Corporation Service
Company.
SECTION 2. Other Offices. The Corporation may also have offices at such
other places, within or without the State of Delaware, as the Board of Directors
may from time to time appoint or the business of the Corporation may require.
ARTICLE II
SEAL
The seal of the Corporation shall, subject to alteration by the Board
of Directors, consist of a flat-faced circular die with the word "Delaware",
together with the name of the Corporation and the year of incorporation, cut or
engraved thereon.
ARTICLE III
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meeting. Meetings of the stockholders shall be held
either within or without the State of Delaware at such place as the Board of
Directors may fix from time to time.
SECTION 2. Annual Meetings. The annual meeting of stockholders shall be
held for the election of directors on such date and at such time as the Board of
Directors may fix from time to time. Any other proper business may be transacted
at the annual meeting.
SECTION 3. Special Meetings. Special meetings of the stockholders for
any purpose or purposes may be called by the Chairman of the Board of Directors,
if there be one, the President or by the directors (either by written instrument
signed by a majority or by resolution adopted by a vote of the majority), and
special meetings shall be called by the President or the Secretary whenever
stockholders owning a majority of the capital stock issued, outstanding and
entitled to
-1-
vote so request in writing. Such request of stockholders shall state the purpose
or purposes of the proposed meeting.
SECTION 4. Notice. Written or printed notice of every meeting of
stockholders, annual or special, stating the hour, date and place thereof, and
the purpose or purposes in general terms for which the meeting is called shall,
not less than ten (10) days, or such longer period as shall be provided by law,
the Certificate of Incorporation, these By-Laws, or otherwise, and not more than
sixty (60) days before such meeting, be served upon or mailed to each
stockholder entitled to vote thereat, at the address of such stockholder as it
appears upon the stock records of the Corporation or, if such stockholder shall
have filed with the Secretary of the Corporation a written request that notices
be mailed to some other address, then to the address designated in such request.
Notice of the hour, date, place and purpose of any meeting of
stockholders may be dispensed with if every stockholder entitled to vote thereat
shall attend either in person or by proxy and shall not, at the beginning of the
meeting, object to the holding of such meeting because the meeting has not been
lawfully called or convened, or if every absent stockholder entitled to such
notice shall in writing, filed with the records of the meeting, either before or
after the holding thereof, waive such notice.
SECTION 5. Quorum and Adjournments. Except as otherwise provided by law
or by the Certificate of Incorporation, the presence in person or by proxy at
any meeting of stockholders of the holders of a majority of the shares of the
capital stock of the Corporation issued and outstanding and entitled to vote
thereat, shall be requisite and shall constitute a quorum. So long as the
Certificate of Incorporation provides for more or less than one vote for any
share, or any matter, every reference in these By-Laws to a majority or other
proportion of shares shall refer to such majority or other proportion of the
votes of such shares. If two or more classes of stock are entitled to vote as
separate classes upon any question, then, in the case of each such class, a
quorum for the consideration of such question shall, except as otherwise
provided by law or by the Certificate of Incorporation, consist of a majority in
interest of all stock of that class issued, outstanding and entitled to vote. If
a majority of the shares of capital stock of the Corporation issued and
outstanding and entitled to vote thereat or, where a larger quorum is required,
such quorum, shall not be represented at any meeting of the stockholders
regularly called, the holders of a majority of the shares present or represented
by proxy and entitled to vote thereat shall have power to adjourn the meeting to
another time, or to another time and place, without notice other than
announcement of adjournment at the meeting, and there may be successive
adjournments for like cause and in like manner until the requisite amount of
shares entitled to vote at such meeting shall be represented; provided, however,
that if the adjournment is for more than thirty (30) days, notice of the hour,
date and place of the adjourned meeting shall be given to each stockholder
entitled to vote thereat. Subject to the requirements of law and the Certificate
of Incorporation, on any issue on which two or more classes of stock are
entitled to vote separately, no adjournment shall be taken with respect to any
class for which a quorum is present unless the Chairman of the meeting otherwise
directs. At any meeting held to consider matters which were subject to
adjournment for want of a quorum at which the requisite amount of shares
entitled to vote thereat shall be represented, any business may be transacted
which might have been transacted at the meeting as originally noticed.
-2-
SECTION 6. Votes; Proxies. Except as otherwise provided in the
Certificate of Incorporation, at each meeting of stockholders, every stockholder
of record at the closing of the transfer books, if closed, or on the date set by
the Board of Directors for the determination of stockholders entitled to vote at
such meeting, shall have one vote for each share of stock entitled to vote which
is registered in such stockholder's name on the books of the Corporation, and,
in the election of directors, may vote cumulatively to the extent, if any, and
in the manner authorized in the Certificate of Incorporation.
At each such meeting every stockholder entitled to vote shall be
entitled to do so in person, or by proxy appointed by an instrument in writing
or as otherwise permitted by law subscribed by such stockholder and bearing a
date not more than three (3) years prior to the meeting in question, unless said
instrument provides for a longer period during which it is to remain in force. A
duly executed proxy shall be irrevocable if it states that it is irrevocable and
if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A proxy may be made irrevocable regardless of
whether the interest with which it is coupled is an interest in the stock itself
or any interest in the Corporation generally. A stockholder may revoke any proxy
which is not irrevocable by attending the meeting and voting in person or by
filing with the Secretary of the Corporation an instrument in writing or as
otherwise permitted by law revoking the proxy or another duly executed proxy
bearing a later date.
Voting at meetings of stockholders need not be by written ballot and,
except as otherwise provided by law, need not be conducted by an inspector of
election unless so determined by the Chairman of the meeting or by the holders
of shares of stock having a majority of the votes which could be cast by the
holders of all outstanding shares of stock entitled to vote thereon which are
present in person or represented by proxy at such meeting. If it is required or
determined that an inspector of election be appointed, the Chairman shall
appoint one inspector of election, who shall first take and subscribe an oath or
affirmation faithfully to execute the duties of an inspector at such meeting
with strict impartiality and according to the best of his ability. The
inspectors so appointed shall take charge of the polls and, after the balloting,
shall make a certificate of the result of the vote taken. No director or
candidate for the office of director shall be appointed as such inspector.
At any meeting at which a quorum is present, a plurality of the votes
properly cast for election to fill any vacancy on the Board of Directors shall
be sufficient to elect a candidate to fill such vacancy, and a majority of the
votes properly cast upon any other question shall decide the question, except in
any case where a larger vote is required by law, the Certificate of
Incorporation, these By-Laws, or otherwise.
SECTION 7. Organization. The Chairman of the Board, if there be one, or
in his or her absence the Vice Chairman, or in the absence of a Vice Chairman,
the President, or in the absence of the President, a Vice President, shall call
meetings of the stockholders to order and shall act as chairman thereof. The
Secretary of the Corporation, if present, shall act as secretary of all meetings
of stockholders, and, in his or her absence, the presiding officer may appoint a
secretary.
SECTION 8. Consent of Stockholders in Lieu of Meeting. Unless otherwise
restricted by the Certificate of Incorporation, any action required or permitted
by the Delaware General
-3-
Corporation Law to be taken at any annual or special meeting of the stockholders
of the Corporation, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and shall be delivered to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty (60) days of
the earliest dated consent delivered in the manner required by this section to
the Corporation, written consents signed by a sufficient number of stockholders
to take action are delivered to the corporation by delivery to its registered
office in Delaware, its principal place of business, or an officer or agent of
the Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing. In the event that the action which is consented
to is such as would have required the filing of a certificate under any section
of the Delaware General Corporation Law other than Section 228 thereof, if such
action had been voted on by stockholders at a meeting thereof, the certificate
filed under such other section shall state, in lieu of any statement required by
such section concerning any vote of stockholders, that written consent has been
given in accordance with Section 228 of the Delaware General Corporation Law,
and that written notice has been given as provided in such Section 228.
ARTICLE IV
DIRECTORS
SECTION 1. Number. The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors consisting of not less than one
director, none of whom needs to be a stockholder. The number of directors for
each year shall be fixed at each annual meeting of stockholders, but if the
number is not so fixed, the number shall remain as it stood immediately prior to
such meeting.
At each annual meeting of stockholders, the stockholders shall elect
directors. Each director so elected shall hold office, subject to the provisions
of law, the Certificate of Incorporation, these By-Laws, or otherwise, until the
next annual meeting of stockholders or until his or her successor is elected and
qualified.
At any time during any year, except as otherwise provided by law, the
Certificate of Incorporation, these By-Laws, or otherwise, the number of
directors may be increased or
-4-
reduced, in each case by vote of a majority of the stock issued and outstanding
and present in person or represented by proxy and entitled to vote for the
election of directors or a majority of the directors in office at the time of
such increase or decrease, regardless of whether such majority constitutes a
quorum.
SECTION 2. Term of Office. Each director shall hold office until the
next annual meeting of stockholders and until his or her successor is duly
elected and qualified or until his or her earlier death or resignation, subject
to the right of the stockholders at any time to remove any director or directors
as provided in Section 4 of this Article.
SECTION 3. Vacancies. If any vacancy shall occur among the directors,
or if the number of directors shall at any time be increased, the directors then
in office, although less than a quorum, by a majority vote may fill the
vacancies or newly- created directorships, or any such vacancies or
newly-created directorships may be filled by the stockholders at any meeting.
SECTION 4. Removal by Stockholders. Except as otherwise provided by
law, the Certificate of Incorporation or otherwise, the holders of record of the
capital stock of the Corporation entitled to vote for the election of directors
may, by a majority vote, remove any director or directors, with or without
cause, and, in their discretion, elect a new director or directors in place
thereof.
SECTION 5. Meetings. Meetings of the Board of Directors shall be held
at such place, within or without the State of Delaware, as may from time to time
be fixed by resolution of the Board of Directors or by the Chairman of the
Board, if there be one, or by the President, and as may be specified in the
notice or waiver of notice of any meeting. Meetings may be held at any time upon
the call of the Chairman of the Board, if there be one, or the President or any
two (2) of the directors in office by oral, telegraphic, telex, telecopy or
other form of electronic transmission, or written notice, duly served or sent or
mailed to each director not less than twenty-four (24) hours before such
meeting, except that, if mailed, not less than seventy two (72) hours before
such meeting.
Meetings may be held at any time and place without notice if all the
directors are present and do not object to the holding of such meeting for lack
of proper notice or if those not present shall, in writing or by telegram,
telex, telecopy or other form of electronic transmission, waive notice thereof.
A regular meeting of the Board may be held without notice immediately following
the annual meeting of stockholders at the place where such meeting is held.
Regular meetings of the Board may also be held without notice at such time and
place as shall from time to time be determined by resolution of the Board.
Except as otherwise provided by law, the Certificate of Incorporation or
otherwise, neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors or any committee thereof
need be specified in any written waiver of notice.
Members of the Board of Directors or any committee thereof may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and participation in a meeting
pursuant to the foregoing provisions shall constitute presence in person at the
meeting.
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SECTION 6. Votes. Except as otherwise provided by law, the Certificate
of Incorporation or otherwise, the vote of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors.
SECTION 7. Quorum and Adjournment. Except as otherwise provided by law,
the Certificate of Incorporation or otherwise, a majority of the directors shall
constitute a quorum for the transaction of business. If at any meeting of the
Board there shall be less than a quorum present, a majority of those present may
adjourn the meeting from time to time without notice other than announcement of
the adjournment at the meeting, and at such adjourned meeting at which a quorum
is present any business may be transacted which might have been transacted at
the meeting as originally noticed.
SECTION 8. Compensation. Directors shall receive compensation for their
services, as such, and for service on any Committee of the Board of Directors,
as fixed by resolution of the Board of Directors and for expenses of attendance
at each regular or special meeting of the Board or any Committee thereof.
Nothing in this Section shall be construed to preclude a director from serving
the Corporation in any other capacity and receiving compensation therefor.
SECTION 9. Action By Consent of Directors. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
Such consent shall be treated as a vote adopted at a meeting for all purposes.
Such consents may be executed in one or more counterparts and not every Director
or committee member need sign the same counterpart.
ARTICLE V
COMMITTEES OF DIRECTORS
SECTION 1. Executive Committee. The Board of Directors may, by
resolution passed by a majority of the whole Board, appoint an Executive
Committee of one (1) or more members, to serve during the pleasure of the Board,
to consist of such directors as the Board may from time to time designate. The
Board of Directors shall designate the Chairman of the Executive Committee.
(a) Procedure. The Executive Committee shall, by a vote of a
majority of its members, fix its own times and places of
meeting, determine the number of its members constituting a
quorum for the transaction of business, and prescribe its own
rules of procedure, no change in which shall be made save by a
majority vote of its members.
(b) Responsibilities. During the intervals between the meetings of
the Board of Directors, except as otherwise provided by the
Board of Directors in establishing such Committee or
otherwise, the Executive Committee shall possess and may
exercise all the powers of the Board in the management and
direction of the business and affairs of the Corporation;
provided, however, that the Executive Committee shall not,
except to the extent the Certificate of Incorporation or the
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resolution providing for the issuance of shares of stock
adopted by the Board of Directors as provided in Section
151(a) of the Delaware General Business Corporation Law, have
the power:
(i) to amend or authorize the amendment of the
Certificate of Incorporation or these
By-Laws;
(ii) to authorize the issuance of stock in excess
of one million (1,000,000) shares in any
single transaction or group of related
transactions;
(iii) to authorize the payment of any dividend;
(iv) to adopt an agreement of merger or
consolidation pursuant to which the
Corporation will merge or consolidate or to
recommend to the stockholders the sale,
lease or exchange of all or substantially
all the property and business of the
Corporation;
(v) to recommend to the stockholders a
dissolution, or a revocation of a
dissolution, of the Corporation; or
(vi) to adopt a certificate of ownership and
merger pursuant to Section 253 of the
Delaware Business Corporation Law; and
further
(c) Reports. The Executive Committee shall keep regular minutes of
its proceedings, and all action by the Executive Committee
shall be reported promptly to the Board of Directors. Such
action shall be subject to review, amendment and repeal by the
Board, provided that no rights of third parties shall be
adversely affected by such review, amendment or repeal.
(d) Appointment of Additional Members. In the absence or
disqualification of any member of the Executive Committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not constituting a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or
disqualified member.
SECTION 2. Audit Committee. The Board of Directors may, by resolution
passed by a majority of the whole Board, appoint an Audit Committee of one (1)
or more members who shall not be officers or employees of the Corporation to
serve during the pleasure of the Board. The Board of Directors shall designate
the Chairman of the Audit Committee.
(a) Procedure. The Audit Committee, by a vote of a majority of its
members, shall fix its own times and places of meeting, shall
determine the number of its members constituting a quorum for
the transaction of business, and shall prescribe its own rules
of procedure, no change in which shall be made save by a
majority vote of its members.
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(b) Responsibilities. The Audit Committee shall review the annual
financial statements of the Corporation prior to their
submission to the Board of Directors, shall consult with the
Corporation's independent auditors, and may examine and
consider such other matters in relation to the internal and
external audit of the Corporation's accounts and in relation
to the financial affairs of the Corporation and its accounts,
including the selection and retention of independent auditors,
as the Audit Committee may, in its discretion, determine to be
desirable.
(c) Reports. The Audit Committee shall keep regular minutes of its
proceedings, and all action by the Audit Committee shall, from
time to time, be reported to the Board of Directors as it
shall direct. Such action shall be subject to review,
amendment and repeal by the Board, provided that no rights of
third parties shall be adversely affected by such review,
amendment or repeal.
(d) Appointment of Additional Members. In the absence or
disqualification of any member of the Audit Committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not constituting a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or
disqualified member.
SECTION 3. Other Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, at any time appoint one or more other
committees from and outside of its own number. Every such committee must include
at least one member of the Board of Directors. The Board may from time to time
designate or alter, within the limits permitted by law, the Certificate of
Incorporation and this Article, if applicable, the duties, powers and number of
members of such other committees or change their membership, and may at any time
abolish such other committees or any of them.
(a) Procedure. Each committee, appointed pursuant to this Section,
shall, by a vote of a majority of its members, fix its own
times and places of meeting, determine the number of its
members constituting a quorum for the transaction of business,
and prescribe its own rules of procedure, no change in which
shall be made save by a majority vote of its members.
(b) Responsibilities. Each committee, appointed pursuant to this
Section, shall exercise the powers assigned to it by the Board
of Directors in its discretion.
(c) Reports. Each committee appointed pursuant to this Section
shall keep regular minutes of proceedings, and all action by
each such committee shall, from time to time, be reported to
the Board of Directors as it shall direct. Such action shall
be subject to review, amendment and repeal by the Board,
provided that no rights of third parties shall be adversely
affected by such review, amendment or repeal.
(d) Appointment of Additional Members. In the absence or
disqualification of any member of each committee, appointed
pursuant to this Section, the member or members thereof
present at any meeting and not disqualified from voting,
whether or not constituting a quorum, may unanimously appoint
another member of the
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Board of Directors (or, to the extent permitted, another
person) to act at the meeting in place of any such absent or
disqualified member.
SECTION 4. Term of Office. Each member of a committee shall hold office
until the first meeting of the Board of Directors following the annual meeting
of stockholders (or until such other time as the Board of Directors may
determine, either in the vote establishing the committee or at the election of
such member or otherwise) and until his or her successor is elected and
qualified, or until he or she sooner dies, resigns, is removed, is replaced by
change of membership or becomes disqualified by ceasing to be a director (where
membership on the Board is required), or until the committee is sooner abolished
by the Board of Directors.
ARTICLE VI
OFFICERS
SECTION 1. Officers. The Board of Directors shall elect a President, a
Secretary and a Treasurer, and, in their discretion, may elect a Chairman of the
Board, a Vice Chairman of the Board, a Controller, and one or more Executive
Vice Presidents, Vice Presidents, Assistant Secretaries, Assistant Treasurers
and Assistant Controllers as deemed necessary or appropriate. Such officers
shall be elected annually by the Board of Directors at its first meeting
following the annual meeting of stockholders (or at such other meeting as the
Board of Directors determines), and each shall hold office for the term provided
by the vote of the Board, except that each will be subject to removal from
office in the discretion of the Board as provided herein. The powers and duties
of more than one office may be exercised and performed by the same person.
SECTION 2. Vacancies. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors, at any regular or
special meeting.
SECTION 3. Chairman of the Board. The Chairman of the Board of
Directors, if elected, shall be a member of the Board of Directors and shall
preside at its meetings. The Chairman, if other than the President, shall advise
and counsel with the President, and shall perform such duties as from time to
time may be assigned to him or her by the Board of Directors.
SECTION 4. President. The President shall be the chief executive
officer of the Corporation. Subject to the directions of the Board of Directors,
the President shall have and exercise direct charge of and general supervision
over the business and affairs of the Corporation and shall perform all duties
incident to the office of the chief executive officer of a corporation and such
other duties as from time to time may be assigned to him or her by the Board of
Directors. The President may but need not be a member of the Board of Directors.
SECTION 5. Executive Vice Presidents and Vice Presidents. Each
Executive Vice President and Vice President shall have and exercise such powers
and shall perform such duties as from time to time may be assigned to him or to
her by the Board of Directors or the President.
SECTION 6. Secretary. The Secretary shall keep the minutes of all
meetings of the stockholders and of the Board of Directors in books provided for
the purpose; shall see that all notices are duly given in accordance with the
provisions of law and these By-Laws; the Secretary
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shall be custodian of the records and of the corporate seal or seals of the
Corporation; shall see that the corporate seal is affixed to all documents the
execution of which, on behalf of the Corporation under its seal, is duly
authorized, and, when the seal is so affixed, he or she may attest the same; the
Secretary may sign, with the President, an Executive Vice President or a Vice
President, certificates of stock of the Corporation; and, in general, the
Secretary shall perform all duties incident to the office of secretary of a
corporation, and such other duties as from time to time may be assigned to him
or her by the Board of Directors.
SECTION 7. Assistant Secretaries. The Assistant Secretaries in order of
their seniority shall, in the absence or disability of the Secretary, perform
the duties and exercise the powers of the Secretary and shall perform such other
duties as the Board of Directors shall prescribe or as from time to time may be
assigned by the Secretary.
SECTION 8. Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit, or cause to be deposited, in the name of the
Corporation, all monies or other valuable effects in such banks, trust companies
or other depositaries as shall, from time to time, be selected by the Board of
Directors; may endorse for collection on behalf of the Corporation checks, notes
and other obligations; may sign receipts and vouchers for payments made to the
Corporation; may sign checks of the Corporation, singly or jointly with another
person as the Board of Directors may authorize, and pay out and dispose of the
proceeds under the direction of the Board; the Treasurer shall render to the
President and to the Board of Directors, whenever requested, an account of the
financial condition of the Corporation; the Treasurer may sign, with the
President, or an Executive Vice President or a Vice President, certificates of
stock of the Corporation; and in general, shall perform all the duties incident
to the office of treasurer of a corporation, and such other duties as from time
to time may be assigned by the Board of Directors. Unless the Board of Directors
shall otherwise determine, the Treasurer shall be the chief financial officer of
the Corporation.
SECTION 9. Assistant Treasurers. The Assistant Treasurers in order of
their seniority shall, in the absence or disability of the Treasurer, perform
the duties and exercise the powers of the Treasurer and shall perform such other
duties as the Board of Directors shall prescribe or as from time to time may be
assigned by the Treasurer.
SECTION 10. Controller. The Controller, if elected, shall be the chief
accounting officer of the Corporation and shall perform all duties incident to
the office of a controller of a corporation, and, in the absence of or
disability of the Treasurer or any Assistant Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties as the
Board of Directors shall prescribe or as from time to time may be assigned by
the President or the Treasurer.
SECTION 11. Assistant Controllers. The Assistant Controllers in order
of their seniority shall, in the absence or disability of the Controller,
perform the duties and exercise the powers of the Controller and shall perform
such other duties as the Board of Directors shall prescribe or as from time to
time may be assigned by the Controller.
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SECTION 12. Subordinate Officers. The Board of Directors may appoint
such subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority and perform such duties as the Board
of Directors may prescribe. The Board of Directors may, from time to time,
authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
SECTION 13. Compensation. The Board of Directors shall fix the
compensation of all officers of the Corporation. It may authorize any officer,
upon whom the power of appointing subordinate officers may have been conferred,
to fix the compensation of such subordinate officers.
SECTION 14. Removal. Any officer of the Corporation may be removed,
with or without cause, by action of the Board of Directors.
SECTION 15. Bonds. The Board of Directors may require any officer of
the Corporation to give a bond to the Corporation, conditional upon the faithful
performance of his or her duties, with one or more sureties and in such amount
as may be satisfactory to the Board of Directors.
ARTICLE VII
CERTIFICATES OF STOCK
SECTION 1. Form and Execution of Certificates. The interest of each
stockholder of the Corporation shall be evidenced by a certificate or
certificates for shares of stock in such form as the Board of Directors may from
time to time prescribe. The certificates of stock of each class shall be
consecutively numbered and signed by the Chairman or Vice Chairman of the Board,
if any, the President, an Executive Vice President or a Vice President and by
the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer
of the Corporation, and may be countersigned and registered in such manner as
the Board of Directors may by resolution prescribe, and shall bear the corporate
seal or a printed or engraved facsimile thereof. Where any such certificate is
signed by a transfer agent or transfer clerk acting on behalf of the
Corporation, the signatures of any such Chairman, Vice Chairman, President,
Executive Vice President, Vice President, Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary may be facsimiles, engraved or printed. In case
any officer or officers, who shall have signed, or whose facsimile signature or
signatures shall have been used on, any such certificate or certificates, shall
cease to be such officer or officers, whether because of death, resignation or
otherwise, before such certificate or certificates shall have been delivered by
the Corporation, such certificate or certificates may nevertheless be issued and
delivered by the Corporation as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures shall
have been used thereon had not ceased to be such officer or officers.
In case the corporate seal which has been affixed to, impressed on, or
reproduced in any such certificate or certificates shall cease to be the seal of
the Corporation before such certificate or certificates have been delivered by
the Corporation, such certificate or certificates may nevertheless be issued and
delivered by the Corporation as though the seal affixed thereto, impressed
thereon or reproduced therein had not ceased to be the seal of the Corporation.
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Every certificate for shares of stock which are subject to any
restriction on transfer pursuant to law, the Certificate of Incorporation, these
By-Laws, or any agreement to which the Corporation is a party, shall have the
restriction noted conspicuously on the certificate, and shall also set forth, on
the face or back, either the full text of the restriction or a statement of the
existence of such restriction and (except if such restriction is imposed by law)
a statement that the Corporation will furnish a copy thereof to the holder of
such certificate upon written request and without charge.
Every certificate issued when the Corporation is authorized to issue
more than one class or series of stock shall set forth on its face or back
either the full text of the preferences, voting powers, qualifications, and
special and relative rights of the shares of each class and series authorized to
be issued, or a statement of the existence of such preferences, powers,
qualifications and rights, and a statement that the Corporation will furnish a
copy thereof to the holder of such certificate upon written request and without
charge.
SECTION 2. Transfer of Shares. The shares of the stock of the
Corporation shall be transferred on the books of the Corporation by the holder
thereof in person or by his or her attorney lawfully constituted, upon surrender
for cancellation of certificates for the same number of shares, with an
assignment and power of transfer endorsed thereon or attached thereto, duly
executed, with such proof or guaranty of the authenticity of the signature as
the Corporation or its agents may reasonably require. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and accordingly shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person whether or not it shall have express or other notice thereof,
save as expressly provided by law or by the Certificate of Incorporation. It
shall be the duty of each stockholder to notify the Corporation of his or her
post office address.
SECTION 3. Closing of Transfer Books. The stock transfer books of the
Corporation may, if deemed appropriate by the Board of Directors, be closed for
such length of time not exceeding fifty (50) days as the Board may determine,
preceding the date of any meeting of stockholders or the date for the payment of
any dividend or the date for the allotment of rights or the date when any
issuance, change, conversion or exchange of capital stock shall go into effect,
during which time no transfer of stock on the books of the Corporation may be
made.
SECTION 4. Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
directors and which record date: (a) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, the Certificate of
Incorporation or otherwise, not be more than sixty (60) nor less than ten (10)
days before the date of such meeting; (b) in the case of determination of
stockholders entitled to express consent to corporate action in writing without
a meeting, shall, unless otherwise required by law, the Certificate of
Incorporation or otherwise, not be more than ten (10) days from the date upon
which the resolution fixing the
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record date is adopted by the Board of Directors; and (c) in the case of any
other action, shall not be more than sixty (60) days prior to such other action.
If no record date is fixed: (a) the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held; (b) the record date for determining
stockholders entitled to express consent to corporate action in writing without
a meeting when no prior action of the Board of Directors is required by law,
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation in
accordance with applicable law, or, if prior action by the Board of Directors is
required by law, shall be at the close of business on the day on which the Board
of Directors adopts the resolution taking such prior action; and (c) the record
date for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 5. Lost or Destroyed Certificates. In case of the loss or
destruction of any certificate of stock, a new certificate may be issued under
the following conditions:
(a) The owner of said certificate shall file with the Secretary or
any Assistant Secretary of the Corporation an affidavit giving
the facts in relation to the ownership, and in relation to the
loss or destruction of said certificate, stating its number
and the number of shares represented thereby; such affidavit
shall be in such form and contain such statements as shall
satisfy the President, any Executive Vice President, Vice
President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer, that said certificate
has been accidentally destroyed or lost, and that a new
certificate ought to be issued in lieu thereof. Upon being so
satisfied, any such officer may require such owner to furnish
the Corporation a bond in such penal sum and in such form as
he or she may deem advisable, and with a surety or sureties
approved by him or her, to indemnify and save harmless the
Corporation from any claim, loss, damage or liability which
may be occasioned by the issuance of a new certificate in lieu
thereof. Upon such bond being so filed, if so required, a new
certificate for the same number of shares shall be issued to
the owner of the certificate so lost or destroyed; and the
transfer agent and registrar, if any, of stock shall
countersign and register such new certificate upon receipt of
a written order signed by any such officer, and thereupon the
Corporation will save harmless said transfer agent and
registrar in the premises. In case of the surrender of the
original certificate, in lieu of which a new certificate has
been issued, or the surrender of such new certificate, for
cancellation, the bond of indemnity given as a condition of
the issue of such new certificate may be surrendered; or
(b) The Board of Directors of the Corporation may by resolution
authorize and direct any transfer agent or registrar of stock
of the Corporation to issue and register respectively from
time to time without further action or approval by or on
behalf of the Corporation new certificates of stock to replace
certificates reported lost,
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stolen or destroyed upon receipt of an affidavit of loss and
bond of indemnity in form and amount and with surety
satisfactory to such transfer agent or registrar in each
instance or upon such terms and conditions as the Board of
Directors may determine.
SECTION 6. Uncertificated Shares. The Board of Directors of the
Corporation may by resolution provide that one or more of any or all classes or
series of the stock of the Corporation shall be uncertificated shares, subject
to the provisions of Section 158 of the Delaware General Corporation Law.
ARTICLE VIII
EXECUTION OF DOCUMENTS
SECTION 1. Execution of Checks, Notes, etc. All checks and drafts on
the Corporation's bank accounts and all bills of exchange and promissory notes,
and all acceptances, obligations and other instruments for the payment of money,
shall be signed by such officer or officers, or agent or agents, as shall be
thereunto authorized from time to time by the Board of Directors, which may in
its discretion authorize any such signatures to be facsimile.
SECTION 2. Execution of Contracts, Assignments, etc. Unless the Board
of Directors shall have otherwise provided generally or in a specific instance,
all contracts, agreements, endorsements, assignments, transfers, stock powers,
or other instruments shall be signed by the President, any Executive Vice
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer. The Board of Directors may, however, in
its discretion, require any or all such instruments to be signed by any two or
more of such officers, or may permit any or all of such instruments to be signed
by such other officer or officers, agent or agents, as it shall be thereunto
authorize from time to time.
SECTION 3. Execution of Proxies. The President, any Executive Vice
President or any Vice President, and the Secretary, the Treasurer, any Assistant
Secretary or any Assistant Treasurer, or any other officer designated by the
Board of Directors, may sign on behalf of the Corporation proxies to vote upon
shares of stock of other companies standing in the name of the Corporation.
ARTICLE IX
INSPECTION OF BOOKS
The Board of Directors shall determine from time to time whether, and
if allowed, to what extent and at what time and places and under what conditions
and regulations, the accounts and books of the Corporation (except such as may
by law be specifically open to inspection) or any of them, shall be open to the
inspection of the stockholders, and no stockholder shall have any right to
inspect any account or book or document of the Corporation, except as conferred
by the laws of the State of Delaware, unless and until authorized so to do by
resolution of the Board of Directors or of the stockholders of the Corporation.
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ARTICLE X
FISCAL YEAR
The fiscal year of the Corporation shall be determined from time to
time by vote of the Board of Directors.
ARTICLE XI
AMENDMENTS
These By-Laws may be altered, amended, changed or repealed and new
By-Laws adopted by the stockholders or, to the extent provided in the
Certificate of Incorporation, by the Board of Directors, in either case at any
meeting called for that purpose at which a quorum shall be present. Any by-law,
whether made, altered, amended, changed or repealed by the stockholders or the
Board of Directors may be repealed, amended, changed, further amended, changed,
repealed or reinstated, as the case may be, either by the stockholders or by the
Board of Directors, as herein provided; except that this Article may be altered,
amended, changed or repealed only by vote of the stockholders.
ARTICLE XII
INDEMNIFICATION
SECTION 1. Indemnification. (a) The Corporation shall indemnify and
hold harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is a party or is
threatened to be made a party or is otherwise involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, partner, member, trustee, employee or agent of another
corporation, partnership, joint venture, limited liability company, trust or
other enterprise or non-profit entity against all liability, losses, expenses
(including attorneys' fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interest of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interest of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the
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Corporation as a director, officer, partner, member, trustee, employee or agent
of another corporation, partnership, joint venture, limited liability company,
trust or other enterprise or non-profit entity against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine upon application that despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery of the State
of Delaware or such other court shall deem proper.
(c) To the extent that any person referred to in paragraphs (a) or (b)
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to therein, or in defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection therewith.
SECTION 2. Authorization. Any indemnification under Section 1 of this
Article (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, partner, member, trustee, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in Section 1 of this Article. Such determination shall be made: (a) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (b) if such a quorum is
not obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in written opinion, or (c) by the
stockholders.
SECTION 3. Expense Advance. Expenses (including attorneys' fees)
incurred by an officer or director of the Corporation in defending any civil,
criminal, administrative or investigative action, suit or proceeding may be paid
by the Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in the manner provided in
Section 2 of this Article upon receipt of an undertaking by or on behalf of such
officer or director to repay such amount, unless it shall ultimately be
determined that such person is entitled to be indemnified by the Corporation as
authorized in this Article. Such expenses (including attorneys' fees) incurred
by other employees or agents of the Corporation may be so paid upon such terms
and conditions, if any, as the Board of Directors deems appropriate.
SECTION 4. Nonexclusivity. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other Sections of this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any statute,
by-law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in an official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to
be a
-16-
director, officer, partner, member, trustee, employee or agent and shall inure
to the benefit of the heirs, executors and administrators of such a person.
SECTION 5. Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, partner, member, trustee, employee or agent
of another corporation, partnership, joint venture, limited liability company,
trust or other enterprise or non-profit entity against any liability asserted
against and incurred by him or her in any such capacity, or arising out of his
or her status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this
Article or Section 145 of the Delaware General Corporation Law.
SECTION 6. "The Corporation". For the purposes of this Article,
references to "the Corporation" shall include the resulting corporation and, to
the extent that the Board of Directors of the resulting corporation so decides,
all constituent corporations (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers and employees or agents so that any person who is or was a director,
officer, employee or agent of such a constituent corporation or is or was
serving at the request of such constituent corporation as director, officer,
partner, member, trustee, employee or agent of another corporation, partnership,
joint venture, limited liability company, trust or other enterprise or
non-profit entity shall stand in the same position under the provisions of this
Article with respect to the resulting or surviving corporation if its separate
existence had continued.
SECTION 7. Other Indemnification. The Corporation's obligation, if any,
to indemnify any person who was or is serving at its request as a director,
trustee, partner, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise or non-profit entity shall
be reduced by any amount such person may collect as indemnification from such
other corporation, partnership, joint venture, trust or other enterprise or
non-profit entity or from insurance.
SECTION 8. Other Definitions. For purposes of this Article, references
to "other enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, trustee, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director, trustee, officer, employee, or agent with respect to an employee
benefit plan, its participants, or beneficiaries; and a person who acted in good
faith and in a manner he or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Article.
SECTION 9. Continuation of Indemnification. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, trustee, partner, officer, employee or agent
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
-17-
SECTION 10. Amendment or Repeal. Neither the amendment nor repeal of
this Article nor the adoption of any provision of these By-Laws inconsistent
with this Article shall reduce, eliminate or adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the effectiveness of such amendment, repeal or adoption.
-18-
EXHIBIT 4.1
AMERICAN TOWER CORPORATION
TO
...............................
--------------
Indenture
Dated as of ..................., 2000
--------------
Table of Contents
Page
ARTICLE One Definitions and Other Provisions.......................................................1
Section 101 Definitions............................................................................1
Section 102 Compliance Certificates and Opinions..................................................12
Section 103 Form of Documents Delivered to Trustee................................................12
Section 104 Acts of Holders; Record Dates.........................................................13
Section 105 Notices, Etc., to Trustee and Company.................................................15
Section 106 Notice to Holders; Waiver.............................................................15
Section 107 Conflict with Trust Indenture Act.....................................................15
Section 108 Effect of Headings and Table of Contents..............................................16
Section 109 Successors and Assigns................................................................16
Section 110 Separability Clause...................................................................16
Section 111 Benefits of Indenture.................................................................16
Section 112 Governing Law.........................................................................16
Section 113 Legal Holidays........................................................................16
ARTICLE Two Security Forms........................................................................17
Section 201 Forms Generally.......................................................................17
Section 202 Form of Face of Security..............................................................17
Section 203 Form of Reverse of Security...........................................................19
Section 204 Form of Legend for Global Securities..................................................23
Section 205 Form of Trustee's Certificate of Authentication.......................................23
ARTICLE Three The Securities........................................................................24
Section 301 Amount Unlimited; Issuable in Series..................................................24
Section 302 Denominations.........................................................................26
Section 303 Execution, Authentication, Delivery and Dating........................................27
Section 304 Temporary Securities..................................................................28
Section 305 Registration, Registration of Transfer and Exchange...................................29
Section 306 Mutilated, Destroyed, Lost and Stolen Securities......................................30
Section 307 Payment of Interest; Interest Rights Preserved........................................31
Section 308 Persons Deemed Owners.................................................................32
Section 309 Cancellation..........................................................................32
Section 310 Computation of Interest...............................................................33
ARTICLE Four Satisfaction and Discharge............................................................33
Section 401 Satisfaction and Discharge of Indenture...............................................33
Section 402 Application of Trust Money............................................................34
ARTICLE Five Remedies..............................................................................34
Section 501 Events of Default.....................................................................34
Section 502 Acceleration of Maturity; Rescission and Annulment....................................36
Section 503 Collection of Indebtedness and Suits for Enforcement by Trustee.......................37
Section 504 Trustee May File Proofs of Claim......................................................37
i
Table of Contents
(continued)
Page
Section 505 Trustee May Enforce Claims Without Possession of Securities...........................38
Section 506 Application of Money Collected........................................................38
Section 507 Limitation on Suits...................................................................39
Section 508 Unconditional Right of Holders to Receive Principal,
Premium and Interest..................................................................39
Section 509 Restoration of Rights and Remedies....................................................39
Section 510 Rights and Remedies Cumulative........................................................40
Section 511 Delay or Omission Not Waiver..........................................................40
Section 512 Control by Holders....................................................................40
Section 513 Waiver of Past Defaults...............................................................40
Section 514 Undertaking for Costs.................................................................41
Section 515 Waiver of Usury, Stay or Extension Laws...............................................41
ARTICLE Six The Trustee...........................................................................41
Section 601 Certain Duties and Responsibilities...................................................41
Section 602 Notice of Defaults....................................................................42
Section 603 Certain Rights of Trustee.............................................................42
Section 604 Not Responsible for Recitals or Issuance of Securities................................43
Section 605 May Hold Securities...................................................................43
Section 606 Money Held in Trust...................................................................43
Section 607 Compensation and Reimbursement........................................................43
Section 608 Conflicting Interests.................................................................44
Section 609 Corporate Trustee Required; Eligibility...............................................44
Section 610 Resignation and Removal; Appointment of Successor.....................................44
Section 611 Acceptance of Appointment by Successor................................................46
Section 612 Merger, Conversion, Consolidation or Succession to Business...........................47
Section 613 Preferential Collection of Claims Against Company.....................................47
Section 614 Appointment of Authenticating Agent...................................................47
ARTICLE Seven Holders' Lists and Reports by Trustee and Company.....................................49
Section 701 Company to Furnish Trustee Names and Addresses of Holders.............................49
Section 702 Preservation of Information; Communications to Holders................................49
Section 703 Reports by Trustee....................................................................50
Section 704 Reports by Company....................................................................50
ARTICLE Eight Consolidation, Merger, Conveyance, Transfer or
Lease.................................................................................50
Section 801 Company May Consolidate, Etc., Only on Certain Terms..................................50
Section 802 Successor Substituted.................................................................51
ARTICLE Nine Supplemental Indentures...............................................................51
Section 901 Supplemental Indentures Without Consent of Holders....................................51
Section 902 Supplemental Indentures With Consent of Holders.......................................53
Section 903 Execution of Supplemental Indentures..................................................54
ii
Table of Contents
(continued)
Page
Section 904 Effect of Supplemental Indentures.....................................................54
Section 905 Conformity with Trust Indenture Act...................................................54
Section 906 Reference in Securities to Supplemental Indentures....................................54
ARTICLE Ten Covenants.............................................................................54
Section 1001 Payment of Principal, Premium and Interest............................................54
Section 1002 Maintenance of Office or Agency.......................................................55
Section 1003 Money for Securities Payments to Be Held in Trust.....................................55
Section 1004 Statement by Officers as to Default...................................................56
Section 1005 Existence.............................................................................56
Section 1006 Maintenance of Properties.............................................................57
Section 1007 Payment of Taxes and Other Claims.....................................................57
Section 1008 Maintenance of Insurance..............................................................57
Section 1009 Waiver of Certain Covenants...........................................................57
ARTICLE Eleven Redemption of Securities..............................................................58
Section 1101 Applicability of Article..............................................................58
Section 1102 Election to Redeem; Notice to Trustee.................................................58
Section 1103 Selection by Trustee of Securities to Be Redeemed.....................................58
Section 1104 Notice of Redemption..................................................................59
Section 1105 Deposit of Redemption Price...........................................................60
Section 1106 Securities Payable on Redemption Date.................................................60
Section 1107 Securities Redeemed in Part...........................................................60
ARTICLE Twelve Sinking Funds.........................................................................61
Section 1201 Applicability of Article..............................................................61
Section 1202 Satisfaction of Sinking Fund Payments with Securities.................................61
Section 1203 Redemption of Securities for Sinking Fund.............................................61
ARTICLE Thirteen Defeasance and Covenant Defeasance.............................................................62
Section 1301 Company's Option to Effect Defeasance or Covenant Defeasance..........................62
Section 1302 Defeasance and Discharge..............................................................62
Section 1303 Covenant Defeasance...................................................................62
Section 1304 Conditions to Defeasance or Covenant Defeasance.......................................63
Section 1305 Deposited Money and U.S. Government Obligations to Be Held
in Trust; Miscellaneous Provisions....................................................65
Section 1306 Reinstatement.........................................................................66
ARTICLE Fourteen Subordination of Securities....................................................................66
Section 1401 Securities Subordinate to Senior Debt.................................................66
Section 1402 Payment Over of Proceeds Upon Dissolution, Etc........................................66
Section 1403 No Payment When Senior Debt in Default................................................67
Section 1404 Payment Permitted If No Default.......................................................69
Section 1405 Subrogation to Rights of Holders of Senior Debt.......................................69
iii
Table of Contents
(continued)
Page
Section 1406 Provisions Solely to Define Relative Rights...........................................69
Section 1407 Trustee to Effectuate Subordination...................................................70
Section 1408 No Waiver of Subordination Provisions.................................................70
Section 1409 Notice to Trustee.....................................................................70
Section 1410 Reliance on Judicial Order or Certificate of Liquidating Agent........................71
Section 1411 Trustee Not Fiduciary for Holders of Senior Debt......................................71
Section 1412 Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights......................................................................71
Section 1413 Article Applicable to Paying Agents...................................................72
Section 1414 Defeasance of this Article Fourteen...................................................72
iv
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
ss.310(a)(1)..............................................................609
(a)(2)..............................................................609
(a)(3)...................................................Not Applicable
(a)(4)...................................................Not Applicable
(b).................................................................608
ss.311(a).................................................................613
(b).................................................................613
ss.312(a).................................................................701
(b).................................................................702
(c).................................................................702
ss.313(a).................................................................703
(b).................................................................703
(c).................................................................703
(d).................................................................703
ss.314(a).................................................................704
(a)(4)..............................................................101
(b)......................................................Not Applicable
(c)(1)..............................................................102
(c)(2)..............................................................102
(c)(3)...................................................Not Applicable
(d)......................................................Not Applicable
(e).................................................................102
ss.315(a).................................................................601
(b).................................................................602
(c).................................................................601
(d).................................................................601
(e).................................................................514
ss.316(a).................................................................101
(a)(1)(A)...........................................................502
(a)(1)(B)...........................................................513
(a)(2)...................................................Not Applicable
(b).................................................................508
(c).................................................................104
ss.317(a)(1)..............................................................503
(a)(2)..............................................................504
(b).................................................................508
(c).................................................................104
ss.317(a)(1)..............................................................503
(a)(2)..............................................................504
(b)................................................................1003
ss.318(a).................................................................107
- ----------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
INDENTURE, dated as of ................, 2000 between American Tower
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware corporation (herein called the "Company"), having its
principal office at 116 Huntington Avenue, Boston, Massachusetts 02116, and
.............................., a ........................... duly organized and
existing under the laws of ........, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101 Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the Issue Date;
(d) unless otherwise specifically set forth herein, all
calculations or determinations of a Person shall be performed or made
on a consolidated basis in accordance with generally accepted
accounting principles;
(e) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(f) 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.
Certain terms, used principally in Article 14, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"ATC" means ATC Teleports, Inc., a Delaware corporation and a
Subsidiary of the Company.
"ATI" means American Towers, Inc., a Delaware corporation and a
Subsidiary of the Company.
"ATLP" means American Tower, L.P., a Delaware limited partnership and a
Subsidiary of the Company.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Bankruptcy Code" means Title 11, United States Bankruptcy Code of
1978, as amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"blockage period" has the meaning specified in Section 1203.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
-2-
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Lease Obligation" means, at any time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on the balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, capital stock,
(ii) in the case of any association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) or
capital stock and (iii) in the case of a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership.
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of less
than one year from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of less than one year from the date of
acquisition, bankers' acceptances with maturities of less than one year and
overnight bank deposits, in each case with any lender party to the Credit
Agreement or with any domestic commercial bank having capital and surplus in
excess of $500,000,000 and a Keefe Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) entered into with
any financial institution meeting the qualifications specified in clause (iii)
above and (v) commercial paper having the highest rating obtainable from Moody's
Investors Service, Inc. or Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc., and in each case maturing within nine months after
the date of acquisition.
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease or transfer, in one or a series
of related transactions, of all or substantially all of the
Company's assets to any Person or group (as such term is used
in Section 13(d)(3) of the Exchange Act) (other than the
Principal Shareholders or their Related Parties),
(ii) the adoption of a plan relating to the
liquidation or dissolution of the Company,
(iii) the acquisition, directly or indirectly, by any
Person or group (as such term is used in Section 13(d)(3) of
the Exchange Act) (other than one or more of the Principal
Shareholders and their Related Parties) of 50% or more of the
voting power of the voting stock of the Company by way of
merger or consolidation or otherwise, provided that such
acquisition will not constitute a "Change of Control" unless
or until such Person or group owns, directly or
-3-
indirectly, more of the voting power of the voting stock of
the Company than the Principal Shareholders and their Related
Parties, or
(iv) the Continuing Directors cease for any reason to
constitute a majority of the directors of the Company then in
office.
For purposes of this definition, any transfer of an Equity Interest of an entity
that was formed for the purpose of acquiring voting stock of the Company shall
be deemed to be a transfer of such portion of such voting stock as corresponds
to the portion of the equity of such entity that has been so transferred.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its Chief Executive Officer, its Chief Operating Officer,
its Chief Financial Officer, its President or a Vice President, and, without
duplication, by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
................................................................ at which at any
particular time its corporate trust business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Credit Agreement" means Amended and Restated Loan Agreement, dated as
of January 6, 2000, among ATC, ATI, ATLP, Toronto Dominion (Texas), Inc., as
administrative agent, The Toronto-Dominion Bank, New York Branch, as Issuing
Bank, TD Securities (USA) Inc. and Chase Securities Inc., as Co-Lead Arrangers
and Co-Book Managers, The Bank of New York and Chase Securities Inc., as
Co-Syndication Agents, Credit Suisse First Boston, as Documentation Agent, and
the financial institutions defined as "Lenders" therein, as heretofore
-4-
amended, including (i) any related notes, guarantees (including guarantees by
the Company and/or the Company's Subsidiaries), collateral documents,
instruments and agreements executed in connection therewith, and in each case as
amended, modified, renewed, refunded, replaced or refinanced from time to time,
and (ii) any notes, guarantees (including guarantees by the Company's
Subsidiaries), collateral documents, instruments and agreements executed in
connection with any such amendment, modification, renewal, refunding,
replacement or refinancing.
"Default" means any event that is, or after the giving of notice or the
passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 301.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof (other than upon a Change of Control of the
Company in circumstances where the holders of the Securities would have similar
rights), in whole or in part on or prior to one year after the Stated Maturity
of the Securities. The amount of Disqualified Stock shall be the greater of the
liquidation preference or mandatory or optional redemption price thereof.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (including any Indebtedness or
Disqualified Stock that is convertible into, or exchangeable for, Capital
Stock).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board, or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.
-5-
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection or deposit in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
Obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Immediate Family Member" means, with respect to any individual, such
individual's spouse (past or current), descendants (natural or adoptive, of the
whole or half blood) of the parents of such individual, such individual's
grandparents and parents (natural or adoptive), and the grandparents, parents
and descendants of parents (natural or adoptive, of the whole or half blood) of
such individual's spouse (past or current).
"incur" means, with respect to any obligation of any Person, to create,
issue, incur, assume or directly or indirectly guarantee or in any other manner
become directly or indirectly liable for any Indebtedness (and "incurrence",
"incurred", "incurable" and "incurring" shall have meanings correlative to the
foregoing).
"Indebtedness" means, with respect to any Person, whether or not
contingent, (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices) or which is evidenced by a note, bond,
debenture or similar instrument, (ii) all Capital Lease Obligations of such
Person, (iii) all obligations of such Person in respect of letters of credit or
bankers' acceptances issued or created for the account of such Person, (iv) all
Hedging Obligations of such Person, (v) all liabilities secured by any Lien on
any property owned by such Person even if such Person has not assumed or
otherwise become liable for the payment thereof to the extent of the value of
the property subject to such Lien, and (vi) to the extent not otherwise
included, any guarantee by such person of any other Person's indebtedness or
other obligations described in clauses (i) through (v) above.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term
-6-
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Issue Date" means the date of initial issuance of the Securities
pursuant to this Indenture.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in any asset and any filing of, or agreement to give, any financing
statement under the "Uniform Commercial Code" (or equivalent statutes) of any
jurisdiction).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer, the President or a Vice
President, and, without duplication, by the Treasurer, an Assistant Treasurer,
the Controller, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
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(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
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"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Shareholders" means Steven B. Dodge, Thomas H. Stoner,
Hicks, Muse, Tate & Furst Incorporated, Cox Telecom Towers, Inc., Chase Equity
Associates, LLC and Clear Channel Communications, Inc. including their
Affiliates.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Related Party" with respect to any Principal Shareholder means (i) any
80% (or more) owned Subsidiary or Immediate Family Member (in the case of an
individual) of such Principal Shareholder or (ii) any Person, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Principal Shareholder or an
Immediate Family Member, or (iii) any Person employed by the Company in a
management capacity as of the Issue Date.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
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"Restricted Subsidiary" means a Subsidiary of the Company other than an
Unrestricted Subsidiary.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Bank Debt" means (i) the Indebtedness outstanding under the
Credit Agreements, and (ii) all Obligations incurred by or owing to the holders
or their agent or representatives of such Indebtedness outstanding under the
Credit Agreement (including, but not limited to, all fees and expenses of
counsel and all other interest, charges, fees and expenses).
"Senior Debt" means
(i) with respect to the Company, the principal of and interest
(including post-petition interest whether or not allowed as a claim)
on, and all other amounts owing in respect of, (a) Senior Bank Debt,
and (b) any other Indebtedness permitted to be incurred by the Company
under the terms of this Indenture (including, but not limited to,
reasonable fees and expenses of counsel and all other charges, fees and
expenses incurred in connection with such Indebtedness), unless the
instrument creating or evidencing such Indebtedness or pursuant to
which such Indebtedness is outstanding expressly provides that such
Indebtedness is on a parity with or subordinated in right of payment to
the Securities; and
(ii) with respect to any Subsidiary Guarantor, the principal
of and interest (including post-petition interest whether or not
allowed as a claim) on, and all other amounts owing in respect of, (a)
Senior Bank Debt and (b) any other Indebtedness permitted to be
incurred by such Subsidiary Guarantor under the terms of this Indenture
(including, but not limited to, reasonable fees and expenses of counsel
and all other charges, fees and expenses incurred in connection with
such Indebtedness), unless the instrument creating or evidencing such
Indebted-ness or pursuant to which such Indebtedness is outstanding
expressly provides that such Indebtedness is on a parity with or
subordinated in right of payment to the Subsidiary Guarantee of such
Subsidiary Guarantor.
Notwithstanding the foregoing, Senior Debt shall not include (v) any
Indebtedness that is represented by Disqualified Stock, (w) any liability for
federal, state, local, or other taxes, (x) any Indebtedness among or between the
Company, any Restricted Subsidiary or any of their Affiliates, (y) any trade
payables and any Indebtedness to trade creditors (other than amounts accrued
thereon) incurred for the purchase of goods or materials, or for services
obtained, in the
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ordinary course of business or any Obligations to trade creditors in respect of
any such Indebtedness, or (z) any Indebtedness (other than Senior Bank Debt)
that is incurred in violation of this Indenture.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Unrestricted Subsidiary" means (i) , (ii) , (iii) , and (iv) any
Subsidiary of the Company that at the time of determination shall be an
Unrestricted Subsidiary (as designated by the Board of Directors of the Company,
as provided below) and (iii) any Subsidiary of an Unrestricted Subsidiary. The
Board of Directors of the Company may designate any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary if all of the following conditions apply: (a) neither the Company nor
any of its Restricted Subsidiaries provides credit support for any Indebtedness
of such Subsidiary (including any undertaking, agreement or instrument
evidencing such Indebtedness), (b) such Subsidiary is not liable, directly or
indirectly, with respect to any Indebtedness other than Unrestricted Subsidiary
Indebtedness, (c) such Unrestricted Subsidiary is not a party to any agreement,
contract, arrangement or understanding at such time with the Company or any
Restricted Subsidiary of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Company or
such Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company (the "Third Party Value") or, in
the event such condition is not satisfied, an amount
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equal to the value of the portion of such agreement, contract, arrangement or
understanding to such Subsidiary in excess of the Third Party Value shall be
deemed a Restricted Payment, and (d) such Unrestricted Subsidiary does not own
any Capital Stock of any Subsidiary of the Company that has not theretofore been
or is not simultaneously being designated an Unrestricted Subsidiary. Any such
designation by the Board of Directors of the Company shall be evidenced to the
Trustee by filing with the Trustee a board resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complies with the foregoing conditions. The Board of Directors of the Company
may designate any Unrestricted Subsidiary as a Restricted Subsidiary.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
Section 102 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1004) shall include,
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or
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covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104 Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
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Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 502, (iii)
any request to institute proceedings referred to in Section 507(2) or (iv) any
direction referred to in Section 512. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on such
record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
With respect to any record date set pursuant to this Section, the
Company may designate any day as the "Expiration Date" and from time to time may
change the Expiration Date to any earlier or later day; provided that no such
change shall be effective unless notice of the proposed new Expiration Date is
given to the Trustee in writing, and to each Holder of Securities of the
relevant series in the manner set forth in Section 106, on or prior to the
existing Expiration Date. If an Expiration Date is not designated with respect
to any record date set pursuant to this Section, the Company shall be deemed to
have initially designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
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Section 105 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: ................., or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
Section 106 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. 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 regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
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Section 108 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110 Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Debt and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 112 Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
Section 113 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
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ARTICLE TWO
Security Forms
Section 201 Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 202 Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
..........................................................
..........................................................................
No. ......... $ ........
American Tower Corporation, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to
..............................................., or registered assigns, the
principal sum of ...................................... Dollars on
........................................................ [if the Security is to
bear interest prior to Maturity, insert-- , and to pay interest thereon from
............. or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on ............ and
............ in each year, commencing ........., at the rate of ....% per annum,
until the principal hereof is paid or made available for payment, provided that
any principal and premium, and any such installment of interest, which is
overdue shall bear interest at the rate of ...% per annum (to the extent that
the payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand. The interest so payable, and punctually
paid or duly provided for, on any
-17-
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ....... or ....... (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ......% per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the
amount so demanded is paid or made available for payment. Interest on any
overdue interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in ............, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
-18-
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: American Tower Corporation
By.............................
Title:
Attest:
.................................
Title:
Section 203 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ............... (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and ..................., as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, the holders of Senior Debt and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert-- , limited in aggregate principal amount
to $...........].
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert--
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert-- on or after .........., 19..], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert-- on or
before ..............., ...%, and if redeemed] during the 12-month period
beginning ............. of the years indicated,
Redemption Redemption
Year Price Year Price
-19-
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert-- on or after ............], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
of the of the Sinking Fund
Year Sinking Fund ----------------------
- ---- ----------------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company
may not, prior to ............., redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than .....% per annum.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on ............ in each year beginning with the year ....... and
ending with the year ...... of [if applicable,
-20-
insert -- not less than $.......... ("mandatory sinking fund") and not more
than] $......... aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [if applicable, insert -- mandatory] sinking fund payments may be
credited against subsequent [if applicable, insert -- mandatory] sinking fund
payments otherwise required to be made [if applicable, insert -- , in the
inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
The indebtedness evidenced by this Security is, to the extent set forth
in the Indenture, subordinate and subject in right of payment to the prior
payment in full in cash or Cash Equivalents of all Senior Debt, and this
Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes.
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
-21-
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $....... and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
-22-
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204 Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary
or a nominee thereof. This Security may not be exchanged in whole or in
part for a Security registered, and no transfer of this Security in
whole or in part may be registered, in the name of any Person other
than such Depositary or a nominee thereof, except in the limited
circumstances described in the Indenture.
Section 205 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
...................................,
As Trustee
By..................................
Authorized Officer
-23-
ARTICLE THREE
The Securities
Section 301 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(b) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(c) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of any Securities
of the series is payable;
(e) the rate or rates at which any Securities of the series
shall bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any such
interest payable on any Interest Payment Date;
(f) the place or places where the principal of and any premium
and interest on any Securities of the series shall be payable;
(g) the period or periods within which, the price or prices at
which and the terms and conditions upon which any Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than by a Board Resolution, the manner in which
any election by the Company to redeem the Securities shall be
evidenced;
-24-
(h) the obligation, if any, of the Company to redeem or
purchase any Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of the Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which any Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(i) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the
series shall be issuable;
(j) if the amount of principal of or any premium or interest
on any Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts shall
be determined;
(k) if other than the currency of the United States of
America, the currency, currencies or currency units in which the
principal of or any premium or interest on any Securities of the series
shall be payable and the manner of determining the equivalent thereof
in the currency of the United States of America for any purpose,
including for purposes of the definition of "Outstanding" in Section
101;
(l) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or currency
units other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which the
principal of or any premium or interest on such Securities as to which
such election is made shall be payable, the periods within which and
the terms and conditions upon which such election is to be made and the
amount so payable (or the manner in which such amount shall be
determined);
(m) if other than the entire principal amount thereof, the
portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(n) if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as
of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be
determined);
(o) if applicable, that the Securities of the series, in whole
or any specified part, shall be defeasible pursuant to Section 1302 or
Section 1303 or both such Sections and, if other than by a Board
Resolution, the manner in which any election by the Company to defease
such Securities shall be evidenced;
-25-
(p) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set
forth in Section 204 and any circumstances in addition to or in lieu of
those set forth in Clause (2) of the last paragraph of Section 305 in
which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons
other than the Depositary for such Global Security or a nominee
thereof;
(q) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 502;
(r) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series;
(s) if applicable, that the Securities of the series are
convertible into or exchangeable for Common Stock or other securities
of the Company, the period or periods within which, the price or prices
at which and the terms and conditions upon which, and the limitations
and restrictions, if any, upon which, any Securities of the series
shall be convertible or exchangeable, in whole or in part, into Common
Stock or other securities of the Company; and
(t) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior Debt
as provided in Article Fourteen.
Section 302 Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the
-26-
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 303 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
-27-
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
-28-
Section 305 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series
at the office or agency of the Company in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of like tenor and
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (a) to issue,
register the transfer of or exchange any Securities of that series (or of that
series and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (b) to register
the transfer of or exchange any
-29-
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
The provisions of clauses (a), (b), (c) and (d) below shall apply only
to Global Securities:
(a) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such Depositary
or a nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Security for all purposes of this
Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (i) such
Depositary (A) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Security or (B) has ceased to
be a clearing agency registered under the Exchange Act, (ii) there
shall have occurred and be continuing an Event of Default with respect
to such Global Security or (iii) there shall exist such circumstances,
if any, in addition to or in lieu of the foregoing as have been
specified for this purpose as contemplated by Section 301.
(c) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for such
Global Security shall direct.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Section,
Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security, unless such
Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
Section 306 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence
to their satisfaction of the destruction, loss or theft of any Security and (b)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in
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lieu of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the
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proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
given to each Holder of Securities of such series in the manner set
forth in Section 106, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may
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deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
Section 310 Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and
delivered (other than (A) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306 and (B) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(ii) all such Securities not theretofore delivered to
the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
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and the Company, in the case of (A), (B) or (C) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501 Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
Fourteen or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
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(b) default in the payment of the principal of or any premium
on any Security of that series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) the entry by a court having jurisdiction in the premises
of (i) a decree or order for relief in respect of the Company or any
Restricted Subsidiary in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (ii) a decree or order adjudging the Company or
any such Restricted Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any such
Restricted Subsidiary under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any such
Restricted Subsidiary or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(f) the commencement by the Company or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company or any such
Restricted Subsidiary to the entry of a decree or order for relief in
respect of the Company or any such Restricted Subsidiary in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
the Company or any such Restricted Subsidiary, or the filing by the
Company or any such Restricted Subsidiary of a petition or answer or
consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by the Company or any such Restricted
Subsidiary to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or any
such Restricted Subsidiary or of any substantial part of the property
of the Company or any such Restricted Subsidiary, or the making by the
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Company or any such Restricted Subsidiary of an assignment for the
benefit of creditors, or the admission by the Company or any such
Restricted Subsidiary in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company or any such Restricted Subsidiary in furtherance of any such
action; or
(g) any other Event of Default provided with respect to
Securities of that series.
Section 502 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(6) or 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in clause (e) or
(f) of Section 501 with respect to Securities of any series at the time
Outstanding occurs, the principal amount of all the Securities of that series
(or, if any Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified by
the terms thereof) shall automatically, and without any declaration or other
action on the part of the Trustee or any Holder, become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest on all Securities of that
series,
(ii) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
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(iv) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(b) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
The Trustee shall not be required to act upon an Event of Default unless it has
actual knowledge of such Event of Default.
Section 503 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or
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other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 505 Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the extent provided in Article Fourteen, to the holders of
Senior Debt of the Company in accordance with Article Fourteen; and
THIRD: To the payment of the amounts then due and unpaid for principal
of and any premium and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively.
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Section 507 Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508 Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights
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and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 510 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512 Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or any premium or
interest on any Security of such series, or
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(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514 Undertaking for Costs.
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, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
Section 515 Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
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Section 602 Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in clause
(d) of Section 501 with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 603 Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to
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examine the books, records and premises of the Company, personally or
by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 604 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 607 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
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(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
Section 608 Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series [or a trustee under -- list here any prior
indentures between the Company and the Trustee that have not been satisfied and
discharged and that may be excluded by the proviso to Section 310(b)(1) of the
Trust Indenture Act].
Section 609 Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, and has a combined
capital and surplus of at least $50,000,000 and has its Corporate Trust Office
in the Borough of Manhattan, The City of New York. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 610 Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
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The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
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The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 611 Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (b)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
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Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section,
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the combined capital and surplus of such Authenticating Agent shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
..................................,
As Trustee
By................................,
As Authenticating Agent
By.................................
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than January 15 and July 15 in
each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Securities of each series
as of the preceding December 31 or June 30, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702 Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
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The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703 Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704 Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(a) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
corporation, partnership, limited liability company or trust, shall be
organized and validly existing under the laws
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of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of and any
premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
any Subsidiary as a result of such transaction as having been incurred
by the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
(c) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the Company
would become subject to a mortgage, pledge, lien, security interest or
other encumbrance which would not be permitted by this Indenture, the
Company or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities
equally and ratably with (or prior to) all indebtedness secured
thereby; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
Section 802 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more
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indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(e) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (i) shall neither (A)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such Security
with respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding; or
(f) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
(h) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
action pursuant to this clause (h) shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
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Section 902 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security or any other Security
which would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502, or change any Place of
Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or modify the provisions of this Indenture with
respect to the subordination of the Securities in a manner materially
adverse to the Holders, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(c) modify any of the provisions of this Section, Section 513
or Section 1009, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 1009, or the deletion of this proviso, in accordance with
the requirements of Section 611 and clause (h) of Section 901.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
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Section 1002 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 1003 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in
......................., notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 1004 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1005 Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
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Section 1006 Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Restricted Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company or any
Restricted Subsidiary from discontinuing the operation or maintenance of any of
such properties if such discontinuance is, in the judgment of the Company or
such Restricted Subsidiary, desirable in the conduct of its business or the
business of any such Restricted Subsidiary and not disadvantageous in any
material respect to the Holders.
Section 1007 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any of its Restricted
Subsidiaries, and (b) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Company or any of
its Restricted Subsidiaries; provided, however, that the Company or such
Restricted Subsidiary shall not be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1008 Maintenance of Insurance.
The Company shall, and shall cause its Restricted Subsidiaries to, keep
at all times all of their properties which are of an insurable nature insured
against loss or damage with insurers believed by the Company to be responsible
to the extent that property of similar character is usually so insured by
corporations similarly situated and owning like properties in accordance with
good business practice. The Company shall, and shall cause its Restricted
Subsidiaries to, use the proceeds from any such insurance policy to repair,
replace or otherwise restore the property to which such proceeds relate.
Section 1009 Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to clause (r) of
Section 301 or clause (b) or (g) of Section 901 for the benefit of the Holders
of such series or in any of Sections 1005 to 1007, inclusive, if before the time
for such compliance the Holders of at least a majority in principal amount of
the Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or
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generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101 Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for such Securities) in
accordance with this Article.
Section 1102 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Company of less than all the Securities of any series (including any such
redemption affecting only a single Security), the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 1103 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
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The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(e) that on the Redemption Date, if such is the case, the
right of the holders of each such Security to convert the Securities
shall terminate;
(f) the place or places where each such Security is to be
surrendered for payment of the Redemption Price, and
(g) that the redemption is for a sinking fund, if such is the
case.
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Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 1106 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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ARTICLE TWELVE
Sinking Funds
Section 1201 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of such Securities is herein referred to as an "optional sinking fund
payment". If provided for by the terms of any Securities, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
Section 1202 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1203 Redemption of Securities for Sinking Fund.
Not less than 30 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 15 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301 Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at its option at any time, to have Section 1302
or Section 1303 applied to any Securities or any series of Securities, as the
case may be, designated pursuant to Section 301 as being defeasible pursuant to
such Section 1302 or 1303, in accordance with any applicable requirements
provided pursuant to Section 301 and upon compliance with the conditions set
forth below in this Article. Any such election shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 301 for
such Securities.
Section 1302 Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations, and the
provisions of Article Fourteen shall cease to be effective, with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of such Securities to receive, solely from
the trust fund described in Section 1304 and as more fully set forth in such
Section, payments in respect of the principal of and any premium and interest on
such Securities when payments are due, (b) the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (d)
this Article. Subject to compliance with this Article, the Company may exercise
its option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section 1303
applied to such Securities.
Section 1303 Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (a)
the Company shall be released from its obligations under clause (c) of Section
801, Sections 1006 through 1008, inclusive, and any covenants provided pursuant
to clause (r) of Section 301 or clause (b) or (g) of Section 901 for the benefit
of the Holders of such Securities, and (b) the occurrence of any event specified
in clause (d) of Section 501 (with respect to any of clause (c) of Section 801,
Sections 1006 through 1008, inclusive, and any such covenants provided pursuant
to clause (r) of Section 301 or clause (b) or (g) of Section 901 shall be deemed
not to be or result in an Event of Default, and (c) the provisions of Article
Fourteen shall cease to be effective, in each case with respect to such
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Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section (to the extent so specified in the case of clause (d) of Section 501) or
Article Fourteen, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Article or by reason of any reference in
any such Section or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
Section 1304 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
1302 or Section 1303 to any Securities or any series of Securities, as the case
may be:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefits of the Holders
of such Securities, (i) money in an amount, or (ii) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and any premium and interest on such
Securities on the respective Stated Maturities, in accordance with the
terms of this Indenture and such Securities. As used herein, "U.S.
Government Obligation" means (x) any security which is (i) a direct
obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any U.S. Government Obligation which is specified in Clause
(x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so
specified and held, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal or interest evidenced by such
depositary receipt.
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(b) In the event of an election to have Section 1302 apply to
any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (ii) since the
date of this instrument, there has been a change in the applicable
Federal income tax law, in either case (i) or (ii) to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge were not
to occur.
(c) In the event of an election to have Section 1303 apply to
any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize gain
or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and
will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that neither such Securities nor
any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(e) No event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such Securities
or any other Securities shall have occurred and be continuing at the
time of such deposit or, with regard to any such event specified in
clause (e) or (f) of Section 501, at any time on or prior to the 90th
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90th day).
(f) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(g) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(h) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust
shall be registered under such Act or exempt from registration
thereunder.
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(i) At the time of such deposit, (i) no default in the payment
of any principal of or premium or interest on any Senior Debt shall
have occurred and be continuing, (ii) no event of default with respect
to any Senior Debt shall have resulted in such Senior Debt becoming,
and continuing to be, due and payable prior to the date on which it
would otherwise have become due and payable (unless payment of such
Senior Debt has been made or duly provided for), and (iii) no other
event of default with respect to any Senior Debt shall have occurred
and be continuing permitting (after notice or lapse of time or both)
the holders of such Senior Debt (or a trustee on behalf of such
holders) to declare such Senior Debt due and payable prior to the date
on which it would otherwise have become due and payable.
(j) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
Section 1305 Deposited Money and U.S. Government Obligations to Be Held
in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law. Money and U.S. Government
Obligations so held in trust shall not be subject to the provisions of Article
Fourteen.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1304 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
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Section 1306 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
ARTICLE FOURTEEN
Subordination of Securities
Section 1401 Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article (subject to the provisions of
Article Four and Article Thirteen), the payment of the principal of (and
premium, if any) and interest on each and all of the Securities are hereby
expressly made subordinate and subject in right of payment to the prior payment
in full of all Senior Debt.
Section 1402 Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets or liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Proceeding") the holders of Senior Debt will be
first entitled to receive payment in full of all amounts due or to become due on
or in respect of all Senior Debt, or provision shall be made for such payment,
in cash or Cash Equivalents or otherwise in a manner satisfactory to the holders
of Senior Debt, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character, on account of principal of (or
premium, if any) or interest on or other obligations in respect of the
Securities or on account of any purchase or other acquisition of Securities by
the Company or any Subsidiary of the Company (all such payments, distributions,
purchases and acquisitions herein referred to, individually and collectively, as
a "Securities
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Payment"), and to that end the holders of Senior Debt shall be entitled to
receive, for application to the payment thereof, any Securities Payment which
may be payable or deliverable in respect of the Securities in any such
Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee receives payment or distribution of assets of the Company
of any kind or character, before all the Senior Debt is paid in full in cash or
Cash Equivalents, then and in such event such Securities Payment shall be paid
over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay the Senior Debt in
full in cash or Cash Equivalents.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include a payment or distribution of stock or securities
of the Company provided for by a plan of reorganization or readjustment
authorized by an order or decree of a court of competent jurisdiction in a
reorganization proceeding under any applicable bankruptcy law or of any other
corporation provided for by such plan of reorganization or readjustment which
stock or securities are subordinated in right of payment to all then outstanding
Senior Debt to at least the same extent as the Securities are so subordinated as
provided in this Article; provided, however, that (a) if a new corporation
results from such reorganization or readjustment, such corporation assumes any
Senior Debt not paid in full in cash or Cash Equivalents in connection with such
reorganization or readjustment and (b) the rights of the holders of such Senior
Debt are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with, or the
merger of the Company into, another Person or the liquidation or dissolution of
the Company following the conveyance or transfer of all or substantially all of
its properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article Eight shall not be deemed a Proceeding for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article Eight.
Section 1403 No Payment When Senior Debt in Default.
In the event that any Senior Payment Default (as defined below) shall
have occurred and be continuing, then no Securities Payment shall be made unless
and until such Senior Payment Default shall have been cured or waived or shall
have ceased to exist or all amounts then due and payable in respect of Senior
Debt shall have been paid in full, or provision shall have been made for such
payment, in cash or Cash Equivalents or otherwise in a manner satisfactory to
the holders of Senior Debt. "Senior Payment Default" means any default in the
payment of principal of (or premium, if any) or interest on any Senior Debt when
due, whether at the Maturity thereof or by declaration of acceleration, call for
redemption or otherwise.
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In the event that any Senior Nonmonetary Default (as defined below)
shall have occurred and be continuing, then, upon the receipt by the Company and
the Trustee of written notice of such Senior Nonmonetary Default from the
representatives of holders of the Designated Senior Debt to which such default
relates, the Company may not make any payments (other than payments previously
made pursuant to Article Fifteen) on account of the Securities or on account of
the purchase or redemption or other acquisition of Securities for a period (the
"blockage period") commencing on the date the Company and Trustee receive such
written notice and ending on the earlier of (a) the 179th day after the date of
such receipt of such written notice and (b) the date, if any, on which the
Designated Senior Debt to which such default relates is discharged or such
default is waived or otherwise cured. In any event, not more than one blockage
period may be commenced during any period of 360 consecutive days and there
shall be a period of at least 181 consecutive days in each period of 360
consecutive days when no blockage period is in effect. For all purposes of this
paragraph, no Senior Nonmonetary Default that existed or was continuing on the
date of commencement of any blockage period with respect to the Designated
Senior Debt initiating such blockage period will be, or can be, made the basis
for the commencement of a subsequent blockage period unless such default has
been cured or waived for a period of not less than 180 consecutive days. "Senior
Nonmonetary Default" means the occurrence or existence and continuance of any
event of default, or of any event which, after notice or lapse of time (or
both), would become an event of default, under the terms of any instrument
pursuant to which any Designated Senior Debt is outstanding, permitting (after
notice or lapse of time or both) one or more holders of such Senior Debt (or a
trustee or agent on behalf of the holders thereof) to declare such Senior Debt
due and payable prior to the date on which it would otherwise become due and
payable, other than a Senior Payment Default.
In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on any Senior Debt beyond any
applicable grace period with respect thereto, or in the event that any event of
default with respect to any Senior Debt shall have occurred and be continuing
permitting the holders of such Senior Debt (or a trustee on behalf of the
holders thereof) to declare such Senior Debt, and shall have resulted in such
Senior Debt becoming or being declared, due and payable prior to the date on
which it would otherwise have become due and payable, unless and until such
event of default shall have been cured or waived or shall have ceased to exist,
or in the event any judicial proceeding shall be pending with respect to any
such default in payment or event of default, then no Securities Payment shall be
made.
In the event that, notwithstanding the foregoing, the Company shall
make any Securities Payment to the Trustee or any Holder prohibited by the
foregoing provisions of this Section, then and in such event, subject to Section
1404, such Securities Payment shall be paid over and delivered forthwith to the
holders of the Senior Debt remaining unpaid, to the extent necessary to pay in
full all the Senior Debt.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 1402 would be applicable.
-68-
Section 1404 Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any Proceeding referred to in Section 1402 or under the
conditions described in Section 1403, from making Securities Payments, or (b)
the application by the Trustee of any money deposited with it hereunder to
Securities Payments or the retention of such Securities Payment by the Holders,
if, at the time of such application by the Trustee, it did not have knowledge
that such Securities Payment would have been prohibited by the provisions of
this Article.
Section 1405 Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all amounts due or to become due on
or in respect of Senior Debt, or the provision for such payment, in cash or Cash
Equivalents or otherwise in a manner satisfactory to the holders of Senior Debt,
the Holders of the Securities shall be subrogated (equally and ratably with the
holders of all Indebtedness of the Company which by its express terms is
subordinated to Indebtedness of the Company to substantially the same extent as
the Securities are subordinated to the Senior Debt and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Debt) to the rights of the holders of such Senior Debt to receive
payments and distributions of cash, property and securities applicable to the
Senior Debt until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Debt of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Debt by
Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Debt and the Holders of the Securities,
be deemed to be a payment or distribution by the Company to or on account of the
Senior Debt.
Section 1406 Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Debt on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as among the Company, its creditors other than holders of Senior Debt
and the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of the Securities
and creditors of the Company other than the holders of Senior Debt; or (c)
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Debt to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
-69-
Section 1407 Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 1408 No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do any
one or more of the following: (a) change the manner, place or terms of payment
or extend the time of payment of, or renew, increase or alter, Senior Debt, or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding; (b)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing Senior Debt; (c) release any Person liable in any manner
for the payment or collection of Senior Debt; and (d) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 1409 Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 601, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least three Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
-70-
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Debt (or a trustee therefor) to establish that
such notice has been given by a holder of Senior Debt (or a trustee therefor).
In the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Debt held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this Article, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
Section 1410 Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
Section 1411 Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if it shall
in good faith mistakenly pay over or distribute to Holders of Securities or to
the Company or to any other Person cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this Article or otherwise.
Section 1412 Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
-71-
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
Section 1413 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1414 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 1414 Defeasance of this Article Fourteen.
The subordination of the Securities provided by this Article is
expressly made subject to the provisions for defeasance or covenant defeasance
in Article Thirteen hereof and, anything herein to the contrary notwithstanding,
upon the effectiveness of any such defeasance or covenant defeasance, the
Securities then outstanding shall thereupon cease to be subordinated pursuant to
this Article Fourteen.
-----------------------------
-72-
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument. In proving the
existence of this Indenture it shall not be necessary to produce more than one
copy.
In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
American Tower Corporation
By............................
Attest:
...........................
...................................
By.................................
Attest:
...........................
-73-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of
................................., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
...............................
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of
................................., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
...............................
EXHIBIT 4.2
AMERICAN TOWER CORPORATION
TO
...............................
--------------
Indenture
Dated as of ..................., 2000
--------------
Table of Contents
Page
ARTICLE ONE Definitions and Other Provisions.......................................................1
Section 101 Definitions............................................................................1
Section 102 Compliance Certificates and Opinions..................................................11
Section 103 Form of Documents Delivered to Trustee................................................12
Section 104 Acts of Holders; Record Dates.........................................................12
Section 105 Notices, Etc., to Trustee and Company.................................................14
Section 106 Notice to Holders; Waiver.............................................................14
Section 107 Conflict with Trust Indenture Act.....................................................14
Section 108 Effect of Headings and Table of Contents..............................................15
Section 109 Successors and Assigns................................................................15
Section 110 Separability Clause...................................................................15
Section 111 Benefits of Indenture.................................................................15
Section 112 Governing Law.........................................................................15
Section 113 Legal Holidays........................................................................15
ARTICLE TWO Security Forms........................................................................16
Section 201 Forms Generally.......................................................................16
Section 202 Form of Face of Security..............................................................16
Section 203 Form of Reverse of Security...........................................................18
Section 204 Form of Legend for Global Securities..................................................22
Section 205 Form of Trustee's Certificate of Authentication.......................................22
ARTICLE THREE The Securities........................................................................23
Section 301 Amount Unlimited; Issuable in Series..................................................23
Section 302 Denominations.........................................................................25
Section 303 Execution, Authentication, Delivery and Dating........................................26
Section 304 Temporary Securities..................................................................27
Section 305 Registration, Registration of Transfer and Exchange...................................28
Section 306 Mutilated, Destroyed, Lost and Stolen Securities......................................29
Section 307 Payment of Interest; Interest Rights Preserved........................................30
Section 308 Persons Deemed Owners.................................................................31
Section 309 Cancellation..........................................................................31
Section 310 Computation of Interest...............................................................32
ARTICLE FOUR Satisfaction and Discharge............................................................32
Section 401 Satisfaction and Discharge of Indenture...............................................32
Section 402 Application of Trust Money............................................................33
ARTICLE FIVE Remedies..............................................................................33
Section 501 Events of Default.....................................................................33
Section 502 Acceleration of Maturity; Rescission and Annulment....................................35
Section 503 Collection of Indebtedness and Suits for Enforcement by Trustee.......................36
Section 504 Trustee May File Proofs of Claim......................................................36
-i-
Table of Contents
(continued)
Page
Section 505 Trustee May Enforce Claims Without Possession of Securities...........................37
Section 506 Application of Money Collected........................................................37
Section 507 Limitation on Suits...................................................................38
Section 508 Unconditional Right of Holders to Receive Principal,
Premium and Interest..................................................................38
Section 509 Restoration of Rights and Remedies....................................................38
Section 510 Rights and Remedies Cumulative........................................................39
Section 511 Delay or Omission Not Waiver..........................................................39
Section 512 Control by Holders....................................................................39
Section 513 Waiver of Past Defaults...............................................................39
Section 514 Undertaking for Costs.................................................................40
Section 515 Waiver of Usury, Stay or Extension Laws...............................................40
ARTICLE SIX The Trustee...........................................................................40
Section 601 Certain Duties and Responsibilities...................................................40
Section 102 Notice of Defaults....................................................................41
Section 603 Certain Rights of Trustee.............................................................41
Section 604 Not Responsible for Recitals or Issuance of Securities................................42
Section 605 May Hold Securities...................................................................42
Section 606 Money Held in Trust...................................................................42
Section 607 Compensation and Reimbursement........................................................42
Section 608 Conflicting Interests.................................................................43
Section 609 Corporate Trustee Required; Eligibility...............................................43
Section 610 Resignation and Removal; Appointment of Successor.....................................43
Section 611 Acceptance of Appointment by Successor................................................45
Section 612 Merger, Conversion, Consolidation or Succession to Business...........................46
Section 613 Preferential Collection of Claims Against Company.....................................46
Section 614 Appointment of Authenticating Agent...................................................46
ARTICLE SEVEN Holders' Lists and Reports by Trustee and Company.....................................48
Section 701 Company to Furnish Trustee Names and Addresses of Holders.............................48
Section 702 Preservation of Information; Communications to Holders................................48
Section 703 Reports by Trustee....................................................................49
Section 704 Reports by Company....................................................................49
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or
Lease.................................................................................49
Section 801 Company May Consolidate, Etc., Only on Certain Terms..................................49
Section 802 Successor Substituted.................................................................50
ARTICLE NINE Supplemental Indentures...............................................................50
Section 901 Supplemental Indentures Without Consent of Holders....................................50
Section 902 Supplemental Indentures With Consent of Holders.......................................52
Section 903 Execution of Supplemental Indentures..................................................53
-ii-
Table of Contents
(continued)
Page
Section 904 Effect of Supplemental Indentures.....................................................53
Section 905 Conformity with Trust Indenture Act...................................................53
Section 906 Reference in Securities to Supplemental Indentures....................................53
ARTICLE TEN Covenants.............................................................................53
Section 1001 Payment of Principal, Premium and Interest............................................53
Section 1002 Maintenance of Office or Agency.......................................................54
Section 1003 Money for Securities Payments to Be Held in Trust.....................................54
Section 1004 Statement by Officers as to Default...................................................55
Section 1005 Existence.............................................................................55
Section 1006 Maintenance of Properties.............................................................56
Section 1007 Payment of Taxes and Other Claims.....................................................56
Section 1008 Maintenance of Insurance..............................................................56
Section 1009 Waiver of Certain Covenants...........................................................56
ARTICLE ELEVEN Redemption of Securities..............................................................57
Section 1101 Applicability of Article..............................................................57
Section 1102 Election to Redeem; Notice to Trustee.................................................57
Section 1103 Selection by Trustee of Securities to Be Redeemed.....................................57
Section 1104 Notice of Redemption..................................................................58
Section 1105 Deposit of Redemption Price...........................................................59
Section 1106 Securities Payable on Redemption Date.................................................59
Section 1107 Securities Redeemed in Part...........................................................59
ARTICLE TWELVE Sinking Funds.........................................................................60
Section 1201 Applicability of Article..............................................................60
Section 1202 Satisfaction of Sinking Fund Payments with Securities.................................60
Section 1203 Redemption of Securities for Sinking Fund.............................................60
ARTICLE THIRTEEN Defeasance and Covenant Defeasance.............................................................61
Section 1301 Company's Option to Effect Defeasance or Covenant Defeasance..........................61
Section 1302 Defeasance and Discharge..............................................................61
Section 1303 Covenant Defeasance...................................................................61
Section 1304 Conditions to Defeasance or Covenant Defeasance.......................................62
Section 1305 Deposited Money and U.S. Government Obligations to Be Held
in Trust; Miscellaneous Provisions...................................................64
Section 1306 Reinstatement.........................................................................65
-iii-
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
ss.310(a)(1)...........................................................609
(a)(2)..........................................................609
(a)(3)...............................................Not Applicable
(a)(4)...............................................Not Applicable
(b).............................................................608
ss.311(a)..............................................................613
(b).............................................................613
ss.312(a)..............................................................701
(b).............................................................702
(c).............................................................702
ss.313(a)..............................................................703
(b).............................................................703
(c).............................................................703
(d).............................................................703
ss.314(a)..............................................................704
(a)(4)..........................................................101
(b)..................................................Not Applicable
(c)(1)..........................................................102
(c)(2)..........................................................102
(c)(3)...............................................Not Applicable
(d)..................................................Not Applicable
(e).............................................................102
ss.315(a)..............................................................601
(b).............................................................602
(c).............................................................601
(d).............................................................601
(e).............................................................514
ss.316(a)..............................................................101
(a)(1)(A).......................................................502
(a)(1)(B).......................................................513
(a)(2)...............................................Not Applicable
(b).............................................................508
(c).............................................................104
ss.317(a)(1)...........................................................503
(a)(2)..........................................................504
(b).............................................................508
(c).............................................................104
ss.317(a)(1)...........................................................503
(a)(2)..........................................................504
(b)............................................................1003
ss.318(a)..............................................................107
- ----------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
INDENTURE, dated as of ................, 2000 between American Tower
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware corporation (herein called the "Company"), having its
principal office at 116 Huntington Avenue, Boston, Massachusetts 02116, and
.............................., a ........................... duly organized and
existing under the laws of ........, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101 Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the Issue Date;
(d) unless otherwise specifically set forth herein, all
calculations or determinations of a Person shall be performed or made
on a consolidated basis in accordance with generally accepted
accounting principles;
(e) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(f) 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.
Certain terms, used principally in Article 14, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"ATC" means ATC Teleports, Inc., a Delaware corporation and a
Subsidiary of the Company.
"ATI" means American Towers, Inc., a Delaware corporation and a
Subsidiary of the Company.
"ATLP" means American Tower, L.P., a Delaware limited partnership and a
Subsidiary of the Company.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Bankruptcy Code" means Title 11, United States Bankruptcy Code of
1978, as amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"blockage period" has the meaning specified in Section 1203.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
-2-
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Lease Obligation" means, at any time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on the balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, capital stock,
(ii) in the case of any association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) or
capital stock and (iii) in the case of a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership.
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of less
than one year from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of less than one year from the date of
acquisition, bankers' acceptances with maturities of less than one year and
overnight bank deposits, in each case with any lender party to the Credit
Agreement or with any domestic commercial bank having capital and surplus in
excess of $500,000,000 and a Keefe Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) entered into with
any financial institution meeting the qualifications specified in clause (iii)
above and (v) commercial paper having the highest rating obtainable from Moody's
Investors Service, Inc. or Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc., and in each case maturing within nine months after
the date of acquisition.
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease or transfer, in one or a series
of related transactions, of all or substantially all of the
Company's assets to any Person or group (as such term is used
in Section 13(d)(3) of the Exchange Act) (other than the
Principal Shareholders or their Related Parties),
(ii) the adoption of a plan relating to the
liquidation or dissolution of the Company,
(iii) the acquisition, directly or indirectly, by any
Person or group (as such term is used in Section 13(d)(3) of
the Exchange Act) (other than one or more of the Principal
Shareholders and their Related Parties) of 50% or more of the
voting power of the voting stock of the Company by way of
merger or consolidation or otherwise, provided that such
acquisition will not constitute a "Change of Control" unless
or until such Person or group owns, directly or
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indirectly, more of the voting power of the voting stock of
the Company than the Principal Shareholders and their Related
Parties, or
(iv) the Continuing Directors cease for any reason to
constitute a majority of the directors of the Company then in
office.
For purposes of this definition, any transfer of an Equity Interest of an entity
that was formed for the purpose of acquiring voting stock of the Company shall
be deemed to be a transfer of such portion of such voting stock as corresponds
to the portion of the equity of such entity that has been so transferred.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its Chief Executive Officer, its Chief Operating Officer,
its Chief Financial Officer, its President or a Vice President, and, without
duplication, by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
................... at which at any particular time its corporate trust business
shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Credit Agreement" means Amended and Restated Loan Agreement, dated as
of January 6, 2000, among ATC, ATI, ATLP, Toronto Dominion (Texas), Inc., as
administrative agent, The Toronto-Dominion Bank, New York Branch, as Issuing
Bank, TD Securities (USA) Inc. and Chase Securities Inc., as Co-Lead Arrangers
and Co-Book Managers, The Bank of New York and Chase Securities Inc., as
Co-Syndication Agents, Credit Suisse First Boston, as Documentation Agent, and
the financial institutions defined as "Lenders" therein, as heretofore
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amended, including (i) any related notes, guarantees (including guarantees by
the Company and/or the Company's Subsidiaries), collateral documents,
instruments and agreements executed in connection therewith, and in each case as
amended, modified, renewed, refunded, replaced or refinanced from time to time,
and (ii) any notes, guarantees (including guarantees by the Company's
Subsidiaries), collateral documents, instruments and agreements executed in
connection with any such amendment, modification, renewal, refunding,
replacement or refinancing.
"Default" means any event that is, or after the giving of notice or the
passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 301.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof (other than upon a Change of Control of the
Company in circumstances where the holders of the Securities would have similar
rights), in whole or in part on or prior to one year after the Stated Maturity
of the Securities. The amount of Disqualified Stock shall be the greater of the
liquidation preference or mandatory or optional redemption price thereof.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (including any Indebtedness or
Disqualified Stock that is convertible into, or exchangeable for, Capital
Stock).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board, or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.
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"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection or deposit in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
Obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Immediate Family Member" means, with respect to any individual, such
individual's spouse (past or current), descendants (natural or adoptive, of the
whole or half blood) of the parents of such individual, such individual's
grandparents and parents (natural or adoptive), and the grandparents, parents
and descendants of parents (natural or adoptive, of the whole or half blood) of
such individual's spouse (past or current).
"incur" means, with respect to any obligation of any Person, to create,
issue, incur, assume or directly or indirectly guarantee or in any other manner
become directly or indirectly liable for any Indebtedness (and "incurrence",
"incurred", "incurable" and "incurring" shall have meanings correlative to the
foregoing).
"Indebtedness" means, with respect to any Person, whether or not
contingent, (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices) or which is evidenced by a note, bond,
debenture or similar instrument, (ii) all Capital Lease Obligations of such
Person, (iii) all obligations of such Person in respect of letters of credit or
bankers' acceptances issued or created for the account of such Person, (iv) all
Hedging Obligations of such Person, (v) all liabilities secured by any Lien on
any property owned by such Person even if such Person has not assumed or
otherwise become liable for the payment thereof to the extent of the value of
the property subject to such Lien, and (vi) to the extent not otherwise
included, any guarantee by such person of any other Person's indebtedness or
other obligations described in clauses (i) through (v) above.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term
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"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Issue Date" means the date of initial issuance of the Securities
pursuant to this Indenture.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in any asset and any filing of, or agreement to give, any financing
statement under the "Uniform Commercial Code" (or equivalent statutes) of any
jurisdiction).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer, the President or a Vice
President, and, without duplication, by the Treasurer, an Assistant Treasurer,
the Controller, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
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(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
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"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Shareholders" means Steven B. Dodge, Thomas H. Stoner,
Hicks, Muse, Tate & Furst Incorporated, Cox Telecom Towers, Inc., Chase Equity
Associates, LLC and Clear Channel Communications, Inc. including their
Affiliates.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Related Party" with respect to any Principal Shareholder means (i) any
80% (or more) owned Subsidiary or Immediate Family Member (in the case of an
individual) of such Principal Shareholder or (ii) any Person, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Principal Shareholder or an
Immediate Family Member, or (iii) any Person employed by the Company in a
management capacity as of the Issue Date.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
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"Restricted Subsidiary" means a Subsidiary of the Company other than an
Unrestricted Subsidiary.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Unrestricted Subsidiary" means (i) , (ii) , (iii) , and (iv) any
Subsidiary of the Company that at the time of determination shall be an
Unrestricted Subsidiary (as designated by the Board of Directors of the Company,
as provided below) and (iii) any Subsidiary of an Unrestricted Subsidiary. The
Board of Directors of the Company may designate any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary if all of the following conditions apply: (a) neither the Company nor
any of its Restricted Subsidiaries provides credit support for any Indebtedness
of such Subsidiary (including any undertaking, agreement or instrument
evidencing such Indebtedness), (b) such
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Subsidiary is not liable, directly or indirectly, with respect to any
Indebtedness other than Unrestricted Subsidiary Indebtedness, (c) such
Unrestricted Subsidiary is not a party to any agreement, contract, arrangement
or understanding at such time with the Company or any Restricted Subsidiary of
the Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates of the Company (the "Third Party Value") or, in the event such
condition is not satisfied, an amount equal to the value of the portion of such
agreement, contract, arrangement or understanding to such Subsidiary in excess
of the Third Party Value shall be deemed a Restricted Payment, and (d) such
Unrestricted Subsidiary does not own any Capital Stock of any Subsidiary of the
Company that has not theretofore been or is not simultaneously being designated
an Unrestricted Subsidiary. Any such designation by the Board of Directors of
the Company shall be evidenced to the Trustee by filing with the Trustee a board
resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complies with the foregoing conditions. The
Board of Directors of the Company may designate any Unrestricted Subsidiary as a
Restricted Subsidiary.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
Section 102 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1004) shall include,
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
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(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104 Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or
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affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 502, (iii)
any request to institute proceedings referred to in Section 507(2) or (iv) any
direction referred to in Section 512. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on such
record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
With respect to any record date set pursuant to this Section, the
Company may designate any day as the "Expiration Date" and from time to time may
change the Expiration Date to any earlier or later day; provided that no such
change shall be effective unless notice of the proposed new Expiration Date is
given to the Trustee in writing, and to each Holder of Securities of the
relevant series in the manner set forth in Section 106, on or prior to the
existing Expiration Date. If an Expiration Date is not designated with respect
to any record date set pursuant to this Section, the Company shall be deemed to
have initially designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph.
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Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 105 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: ................., or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
Section 106 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. 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 regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any
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provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or to
be excluded, as the case may be.
Section 108 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110 Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Debt and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 112 Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
Section 113 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
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ARTICLE TWO
Security Forms
Section 201 Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 202 Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
...............................................
.......................................................
No. ......... $ ........
American Tower Corporation, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to .................................., or
registered assigns, the principal sum of ............................ Dollars on
......................................... [if the Security is to bear interest
prior to Maturity, insert-- , and to pay interest thereon from ............. or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on ............ and ............ in each year,
commencing ........., at the rate of ....% per annum, until the principal hereof
is paid or made available for payment, provided that any principal and premium,
and any such installment of interest, which is overdue shall bear interest at
the rate of ...% per annum (to the extent that the payment of such interest
shall be legally enforceable), from the dates such amounts are due until they
are paid or made available for payment, and such interest shall be payable on
demand. The interest so payable, and punctually paid or duly provided for, on
any
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Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ....... or ....... (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ......% per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the
amount so demanded is paid or made available for payment. Interest on any
overdue interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in ............, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
-17-
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: American Tower Corporation
By................................
Title:
Attest:
................
Title:
Section 203 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ............... (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and ..................., as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, the holders of Senior Debt and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert-- , limited in aggregate principal amount
to $...........].
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert--
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert-- on or after .........., 19..], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert-- on or
before ..............., ...%, and if redeemed] during the 12-month period
beginning ............. of the years indicated,
Redemption Redemption
Year Price Year Price
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and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert-- on or after ............], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
of the of the Sinking Fund
Year Sinking Fund -----------------------
---- ------------------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company
may not, prior to ............., redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than .....% per annum.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on ............ in each year beginning with the year ....... and
ending with the year ...... of [if applicable,
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insert -- not less than $.......... ("mandatory sinking fund") and not more
than] $......... aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [if applicable, insert -- mandatory] sinking fund payments may be
credited against subsequent [if applicable, insert -- mandatory] sinking fund
payments otherwise required to be made [if applicable, insert -- , in the
inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
The indebtedness evidenced by this Security is, to the extent set forth
in the Indenture, subordinate and subject in right of payment to the prior
payment in full in cash or Cash Equivalents of all Senior Debt, and this
Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes.
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
-20-
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $....... and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
-21-
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204 Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary
or a nominee thereof. This Security may not be exchanged in whole or in
part for a Security registered, and no transfer of this Security in
whole or in part may be registered, in the name of any Person other
than such Depositary or a nominee thereof, except in the limited
circumstances described in the Indenture.
Section 205 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
........................,
As Trustee
By.......................
Authorized Officer
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ARTICLE THREE
The Securities
Section 301 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(b) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(c) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of any Securities
of the series is payable;
(e) the rate or rates at which any Securities of the series
shall bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any such
interest payable on any Interest Payment Date;
(f) the place or places where the principal of and any premium
and interest on any Securities of the series shall be payable;
(g) the period or periods within which, the price or prices at
which and the terms and conditions upon which any Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than by a Board Resolution, the manner in which
any election by the Company to redeem the Securities shall be
evidenced;
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(h) the obligation, if any, of the Company to redeem or
purchase any Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of the Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which any Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(i) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the
series shall be issuable;
(j) if the amount of principal of or any premium or interest
on any Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts shall
be determined;
(k) if other than the currency of the United States of
America, the currency, currencies or currency units in which the
principal of or any premium or interest on any Securities of the series
shall be payable and the manner of determining the equivalent thereof
in the currency of the United States of America for any purpose,
including for purposes of the definition of "Outstanding" in Section
101;
(l) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or currency
units other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which the
principal of or any premium or interest on such Securities as to which
such election is made shall be payable, the periods within which and
the terms and conditions upon which such election is to be made and the
amount so payable (or the manner in which such amount shall be
determined);
(m) if other than the entire principal amount thereof, the
portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(n) if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as
of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be
determined);
(o) if applicable, that the Securities of the series, in whole
or any specified part, shall be defeasible pursuant to Section 1302 or
Section 1303 or both such Sections and, if other than by a Board
Resolution, the manner in which any election by the Company to defease
such Securities shall be evidenced;
-24-
(p) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set
forth in Section 204 and any circumstances in addition to or in lieu of
those set forth in Clause (2) of the last paragraph of Section 305 in
which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons
other than the Depositary for such Global Security or a nominee
thereof;
(q) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 502;
(r) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series;
(s) if applicable, that the Securities of the series are
convertible into or exchangeable for Common Stock or other securities
of the Company, the period or periods within which, the price or prices
at which and the terms and conditions upon which, and the limitations
and restrictions, if any, upon which, any Securities of the series
shall be convertible or exchangeable, in whole or in part, into Common
Stock or other securities of the Company; and
(t) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior Debt
as provided in Article Fourteen.
Section 302 Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the
-25-
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 303 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
-26-
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
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Section 305 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series
at the office or agency of the Company in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of like tenor and
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (a) to issue,
register the transfer of or exchange any Securities of that series (or of that
series and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (b) to register
the transfer of or exchange any
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Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
The provisions of clauses (a), (b), (c) and (d) below shall apply only
to Global Securities:
(a) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such Depositary
or a nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Security for all purposes of this
Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (i) such
Depositary (A) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Security or (B) has ceased to
be a clearing agency registered under the Exchange Act, (ii) there
shall have occurred and be continuing an Event of Default with respect
to such Global Security or (iii) there shall exist such circumstances,
if any, in addition to or in lieu of the foregoing as have been
specified for this purpose as contemplated by Section 301.
(c) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for such
Global Security shall direct.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Section,
Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security, unless such
Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
Section 306 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence
to their satisfaction of the destruction, loss or theft of any Security and (b)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in
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lieu of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the
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proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
given to each Holder of Securities of such series in the manner set
forth in Section 106, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may
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deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
Section 310 Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and
delivered (other than (A) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306 and (B) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(ii) all such Securities not theretofore delivered to
the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
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and the Company, in the case of (A), (B) or (C) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501 Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
Fourteen or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
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(b) default in the payment of the principal of or any premium
on any Security of that series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) the entry by a court having jurisdiction in the premises
of (i) a decree or order for relief in respect of the Company or any
Restricted Subsidiary in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (ii) a decree or order adjudging the Company or
any such Restricted Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any such
Restricted Subsidiary under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any such
Restricted Subsidiary or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(f) the commencement by the Company or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company or any such
Restricted Subsidiary to the entry of a decree or order for relief in
respect of the Company or any such Restricted Subsidiary in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
the Company or any such Restricted Subsidiary, or the filing by the
Company or any such Restricted Subsidiary of a petition or answer or
consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by the Company or any such Restricted
Subsidiary to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or any
such Restricted Subsidiary or of any substantial part of the property
of the Company or any such Restricted Subsidiary, or the making by
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the Company or any such Restricted Subsidiary of an assignment for the
benefit of creditors, or the admission by the Company or any such
Restricted Subsidiary in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company or any such Restricted Subsidiary in furtherance of any such
action; or
(g) any other Event of Default provided with respect to
Securities of that series.
Section 502 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(6) or 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in clause (e) or
(f) of Section 501 with respect to Securities of any series at the time
Outstanding occurs, the principal amount of all the Securities of that series
(or, if any Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified by
the terms thereof) shall automatically, and without any declaration or other
action on the part of the Trustee or any Holder, become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest on all Securities of that
series,
(ii) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
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(iv) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(b) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
The Trustee shall not be required to act upon an Event of Default unless it has
actual knowledge of such Event of Default.
Section 503 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or
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other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 505 Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the extent provided in Article Fourteen, to the holders of
Senior Debt of the Company in accordance with Article Fourteen; and
THIRD: To the payment of the amounts then due and unpaid for principal
of and any premium and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively.
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Section 507 Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508 Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights
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and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 510 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512 Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or any premium or
interest on any Security of such series, or
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(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514 Undertaking for Costs.
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, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
Section 515 Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
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Section 602 Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in clause
(d) of Section 501 with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 603 Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to
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examine the books, records and premises of the Company, personally or
by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 604 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 607 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
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(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
Section 608 Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series [or a trustee under -- list here any prior
indentures between the Company and the Trustee that have not been satisfied and
discharged and that may be excluded by the proviso to Section 310(b)(1) of the
Trust Indenture Act].
Section 609 Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, and has a combined
capital and surplus of at least $50,000,000 and has its Corporate Trust Office
in the Borough of Manhattan, The City of New York. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 610 Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
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The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
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The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 611 Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (b)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
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Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section,
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the combined capital and surplus of such Authenticating Agent shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
..........................,
As Trustee
By........................,
As Authenticating Agent
By.........................
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than January 15 and July 15 in
each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Securities of each series
as of the preceding December 31 or June 30, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702 Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
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The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703 Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704 Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(a) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
corporation, partnership, limited liability company or trust, shall be
organized and validly existing under the laws
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of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of and any
premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
any Subsidiary as a result of such transaction as having been incurred
by the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
(c) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the Company
would become subject to a mortgage, pledge, lien, security interest or
other encumbrance which would not be permitted by this Indenture, the
Company or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities
equally and ratably with (or prior to) all indebtedness secured
thereby; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
Section 802 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more
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indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(e) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (i) shall neither (A)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such Security
with respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding; or
(f) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
(h) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
action pursuant to this clause (h) shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
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Section 902 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security or any other Security
which would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502, or change any Place of
Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or modify the provisions of this Indenture with
respect to the subordination of the Securities in a manner materially
adverse to the Holders, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(c) modify any of the provisions of this Section, Section 513
or Section 1009, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 1009, or the deletion of this proviso, in accordance with
the requirements of Section 611 and clause (h) of Section 901.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
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Section 1002 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 1003 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in
......................., notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 1004 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1005 Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
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Section 1006 Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Restricted Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company or any
Restricted Subsidiary from discontinuing the operation or maintenance of any of
such properties if such discontinuance is, in the judgment of the Company or
such Restricted Subsidiary, desirable in the conduct of its business or the
business of any such Restricted Subsidiary and not disadvantageous in any
material respect to the Holders.
Section 1007 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any of its Restricted
Subsidiaries, and (b) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Company or any of
its Restricted Subsidiaries; provided, however, that the Company or such
Restricted Subsidiary shall not be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1008 Maintenance of Insurance.
The Company shall, and shall cause its Restricted Subsidiaries to, keep
at all times all of their properties which are of an insurable nature insured
against loss or damage with insurers believed by the Company to be responsible
to the extent that property of similar character is usually so insured by
corporations similarly situated and owning like properties in accordance with
good business practice. The Company shall, and shall cause its Restricted
Subsidiaries to, use the proceeds from any such insurance policy to repair,
replace or otherwise restore the property to which such proceeds relate.
Section 1009 Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to clause (r) of
Section 301 or clause (b) or (g) of Section 901 for the benefit of the Holders
of such series or in any of Sections 1005 to 1007, inclusive, if before the time
for such compliance the Holders of at least a majority in principal amount of
the Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or
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generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101 Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for such Securities) in
accordance with this Article.
Section 1102 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Company of less than all the Securities of any series (including any such
redemption affecting only a single Security), the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 1103 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
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The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(e) that on the Redemption Date, if such is the case, the
right of the holders of each such Security to convert the Securities
shall terminate;
(f) the place or places where each such Security is to be
surrendered for payment of the Redemption Price, and
(g) that the redemption is for a sinking fund, if such is the
case.
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Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 1106 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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ARTICLE TWELVE
Sinking Funds
Section 1201 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of such Securities is herein referred to as an "optional sinking fund
payment". If provided for by the terms of any Securities, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
Section 1202 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1203 Redemption of Securities for Sinking Fund.
Not less than 30 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 15 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301 Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at its option at any time, to have Section 1302
or Section 1303 applied to any Securities or any series of Securities, as the
case may be, designated pursuant to Section 301 as being defeasible pursuant to
such Section 1302 or 1303, in accordance with any applicable requirements
provided pursuant to Section 301 and upon compliance with the conditions set
forth below in this Article. Any such election shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 301 for
such Securities.
Section 1302 Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations, and the
provisions of Article Fourteen shall cease to be effective, with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of such Securities to receive, solely from
the trust fund described in Section 1304 and as more fully set forth in such
Section, payments in respect of the principal of and any premium and interest on
such Securities when payments are due, (b) the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (d)
this Article. Subject to compliance with this Article, the Company may exercise
its option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section 1303
applied to such Securities.
Section 1303 Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (a)
the Company shall be released from its obligations under clause (c) of Section
801, Sections 1006 through 1008, inclusive, and any covenants provided pursuant
to clause (r) of Section 301 or clause (b) or (g) of Section 901 for the benefit
of the Holders of such Securities, and (b) the occurrence of any event specified
in clause (d) of Section 501 (with respect to any of clause (c) of Section 801,
Sections 1006 through 1008, inclusive, and any such covenants provided pursuant
to clause (r) of Section 301 or clause (b) or (g) of Section 901 shall be deemed
not to be or result in an Event of Default, and (c) the provisions of Article
Fourteen shall cease to be effective, in each case with respect to such
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Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section (to the extent so specified in the case of clause (d) of Section 501) or
Article Fourteen, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Article or by reason of any reference in
any such Section or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
Section 1304 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
1302 or Section 1303 to any Securities or any series of Securities, as the case
may be:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefits of the Holders
of such Securities, (i) money in an amount, or (ii) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and any premium and interest on such
Securities on the respective Stated Maturities, in accordance with the
terms of this Indenture and such Securities. As used herein, "U.S.
Government Obligation" means (x) any security which is (i) a direct
obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any U.S. Government Obligation which is specified in Clause
(x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so
specified and held, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal or interest evidenced by such
depositary receipt.
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(b) In the event of an election to have Section 1302 apply to
any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (ii) since the
date of this instrument, there has been a change in the applicable
Federal income tax law, in either case (i) or (ii) to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge were not
to occur.
(c) In the event of an election to have Section 1303 apply to
any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize gain
or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and
will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that neither such Securities nor
any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(e) No event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such Securities
or any other Securities shall have occurred and be continuing at the
time of such deposit or, with regard to any such event specified in
clause (e) or (f) of Section 501, at any time on or prior to the 90th
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90th day).
(f) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(g) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(h) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust
shall be registered under such Act or exempt from registration
thereunder.
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(i) At the time of such deposit, (i) no default in the payment
of any principal of or premium or interest on any Senior Debt shall
have occurred and be continuing, (ii) no event of default with respect
to any Senior Debt shall have resulted in such Senior Debt becoming,
and continuing to be, due and payable prior to the date on which it
would otherwise have become due and payable (unless payment of such
Senior Debt has been made or duly provided for), and (iii) no other
event of default with respect to any Senior Debt shall have occurred
and be continuing permitting (after notice or lapse of time or both)
the holders of such Senior Debt (or a trustee on behalf of such
holders) to declare such Senior Debt due and payable prior to the date
on which it would otherwise have become due and payable.
(j) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
Section 1305 Deposited Money and U.S. Government Obligations to Be Held
in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law. Money and U.S. Government
Obligations so held in trust shall not be subject to the provisions of Article
Fourteen.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1304 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
-64-
Section 1306 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument. In proving the
existence of this Indenture it shall not be necessary to produce more than one
copy.
In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
American Tower Corporation
By..............................
Attest:
...................
..........................
By........................
Attest:
...................
-65-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of
................................., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
.....................
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of
................................., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
....................
-66-
EXHIBIT 5
SULLIVAN & WORCESTER LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 338-2800
FAX NO. 617-338-2880
IN WASHINGTON, D.C. IN NEW YORK CITY
1025 CONNECTICUT AVENUE, N.W. 767 THIRD AVENUE
WASHINGTON, D.C. 20036 NEW YORK, NEW YORK 10017
(202) 775-8190 (212) 486-8200
FAX NO. 202-293-2275 FAX NO. 212-758-2151
May 26, 2000
American Tower Corporation
116 Huntington Avenue
Boston, Massachusetts 02116
Re: American Tower Corporation Registration Statement on Form S-3
Ladies and Gentlemen:
In connection with the registration by American Tower Corporation, a
Delaware corporation (the "Company"), of up to $1,000,000,000 in aggregate
amount of one or more series of (i) debt securities of the Company (the "Debt
Securities"), (ii) shares of preferred stock, $.01 par value per share, of the
Company (the "Preferred Shares"), (iii) depositary shares representing
fractional interests in Preferred Shares ("Depositary Shares") evidenced by
depositary receipts therefor ("Depositary Receipts"), (iv) shares of Class A
common stock, $.01 par value per share, of the Company (the "Common Shares"), or
(v) warrants to purchase Debt Securities, Preferred Shares, Depositary Shares or
Common Shares (the "Warrants" and, together with the Debt Securities, Preferred
Shares, Depositary Shares, and Common Shares, the "Registered Securities"), for
offering by the Company from time to time, as set forth in the final prospectus
that forms a part of the Registration Statement, as defined below (the
"Prospectus"), and as to be set forth in one or more final supplements to the
Prospectus (each, a "Prospectus Supplement"), the following opinion is furnished
to the Company to be filed with the Securities and Exchange Commission (the
"Commission") as Exhibit 5 to the Company's Registration Statement on Form S-3,
under the Securities Act of 1933, as amended (the "Securities Act"), to be filed
on or about the date hereof. As used in this opinion, the term "Registration
Statement" means, unless otherwise stated, such Registration Statement, as
amended when declared effective by the Commission (including any necessary
post-effective amendments thereto); the term "Convertible Registered Securities"
means Registered Securities which are convertible into, exchangeable for or
exercisable for other Registered Securities, and the term "Underlying Registered
Securities" means any Registered Securities which are issuable upon conversion,
exchange or exercise of Convertible Registered Securities.
In connection with this opinion, we have examined and relied upon a
copy of the Registration Statement to be filed with the Commission on or about
the date hereof. We have also examined and relied upon originals or copies of
such records, agreements and instruments of the Company, certificates of public
officials and of officers of the Company and such other
American Tower Corporation
May 26, 2000
Page 2
documents and records, and such matters of law, as we have deemed necessary as a
basis for the opinions hereinafter expressed. In making such examination, we
have assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals and the
conformity to the originals of all documents submitted to us as copies, which
facts we have not independently verified.
We have necessarily assumed in connection with the opinions expressed
below that the terms and conditions of the Registered Securities and any related
indentures, agreements and instruments, except to the extent described in the
Registration Statement and the form of preliminary prospectus contained therein,
as originally filed, will be, and that any related proceedings of the Company
conducted after the date hereof will be conducted, (i) in accordance with all
applicable laws and the Company's Amended and Restated Certificate of
Incorporation (the "Restated Certificate") and By-Laws, as amended, and (ii) not
in conflict with any contractual or other restrictions which are binding on the
Company, and that, without limiting the generality of the foregoing, any
agreements or instruments that are hereafter required to be filed as an exhibit
to the Registration Statement will be properly filed by an amendment thereto or
by the filing of a Form 8-K by the Company under the Securities Exchange Act of
1934, as amended, and properly incorporated by reference in the Registration
Statement, as permitted by the Securities Act and the rules and regulations of
the Commission thereunder. We have also necessarily assumed in connection with
such opinions with respect to any Common Shares or Preferred Shares or any
Convertible Registered Securities as to which Common Shares or Preferred Shares
are the related Underlying Registered Securities that, at the time of the
issuance thereof, the Company will have a sufficient number of shares of
authorized Common Shares or Preferred Shares, as the case may be, under the
Restated Certificate that will be unissued and not otherwise reserved for
issuance.
To the extent that the obligations of the Company under each Indenture
or any Warrant Agreement or Depositary Agreement (each as defined below) may be
dependent upon such matters, we have assumed for purposes of this opinion that
each Trustee, Warrant Agent and Depositary (each as defined below) are duly
organized, validly existing and in good standing under the laws of their
respective jurisdictions of organization, and are duly qualified to engage in
the activities contemplated by, and have the requisite organizational and legal
power and authority to perform their respective obligations under, each
Indenture, Warrant Agreement and Depositary Agreement to which they are parties,
that each Trustee, Warrant Agent and Depositary will be in compliance, generally
with respect to acting as a trustee or agent under each applicable Indenture,
Warrant Agreement and Depositary Agreement, with all applicable laws and
regulations, and that each Indenture and any Warrant Agreement and Depositary
Agreement will be the valid and binding agreements of each party thereto (other
than, in the case of an indenture in the form filed as Exhibit 4.1 or 4.2 to the
Registration Statement when appropriately completed, the Company), enforceable
against such parties in accordance with their respective terms.
We express no opinion herein as to the laws of any jurisdiction other
than the laws of The Commonwealth of Massachusetts, the Delaware General
Corporation Law and the federal laws
American Tower Corporation
May 26, 2000
Page 3
of the United States of America, and we express no opinion as to state
securities or blue sky laws.
The opinions set forth below are also subject to the following
additional qualifications:
(a) The obligations, rights and remedies of parties may be limited by
(i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws affecting the enforcement generally of the rights and
remedies of creditors or the obligations of debtors, (ii) general principles of
equity (regardless of whether considered in a proceeding at law or in equity),
including, without limitation, the discretion of any court of competent
jurisdiction in granting specific performance or injunctive or other equitable
relief, and (iii) an implied duty on the part of the party seeking to enforce
rights or remedies to take action and make determinations on a reasonable basis
and in good faith to the extent required by applicable law.
(b) We express no opinion as to the enforceability of prospective
waivers of rights to notice or a hearing, or other rights granted by
constitution or statute, powers of attorney, provisions purporting to relieve
parties of the consequences of their own or their agent's negligence or
misconduct, provisions granting indemnity or rights of contribution (which may
be limited or prohibited by federal or state securities laws or public policy),
or provisions purporting to establish evidentiary standards.
(c) The enforceability of any security, obligation or agreement may be
limited by general principles of contract law which include (i) the
unenforceability of provisions to the effect that provisions therein may only be
amended or waived in writing to the extent that an oral agreement modifying such
provisions has been entered into or a course of conduct between the parties
indicates otherwise, (ii) the general rule that, where less than all of an
agreement is enforceable, the balance is enforceable only when the unenforceable
portion is not an essential part of the agreed exchange, (iii) the exercise of
judicial discretion regarding the determination of damages and entitlement to
attorneys' fees and other costs, and (iv) the possible right of the a party
which has materially failed to render or offer performance required by a
contract to cure that failure, unless permitting a cure would unreasonably
hinder the aggrieved party from making substitute arrangements for performance
or it was important in the circumstance to the aggrieved party that performance
occur by the date stated in such contract.
(d) We express no opinion as to (i) whether a state or a federal court
would give effect to the choice of law provided for in any security, obligation
or agreement, (ii) the provisions of any agreement which purport to confer
subject matter jurisdiction on any court, to consent to the jurisdiction of any
court or to waive venue or inconvenient forum with respect to any court, (iii)
any provisions of any security, obligation or agreement which purport to provide
for a method of service of process which is inconsistent with applicable law or
rules of the relevant court, (iv) any provision which purports to bind any party
to agree to conclude an agreement at a future date, or (v) any provisions for
the payment of any amount (other than stated interest rates or dividends) to the
extent that a court may find that such payment constitutes a penalty.
Based on and subject to the foregoing, we are of the opinion that, as
of the date hereof:
American Tower Corporation
May 26, 2000
Page 4
1. Each series of Debt Securities will be validly issued and binding
obligations of the Company when (i) the Registration Statement shall have become
effective under the Securities Act and the indentures filed as Exhibits 4.1 and
4.2 to the Registration Statement, including any necessary supplemental
indenture, or any other indenture, including any necessary supplemental
indenture thereto, filed as an exhibit to the Registration Statement, as the
case may be (the applicable indenture, as so filed and supplemented, the
"Indenture"), shall have been qualified under the Trust Indenture Act of 1939,
as amended, and the Indenture shall have been duly authorized, executed and
delivered by the Company and a trustee named thereunder (the "Trustee"), (ii) a
Prospectus Supplement with respect to such Debt Securities shall have been filed
with the Commission pursuant to Rule 424 under the Securities Act, (iii) the
Company's Board of Directors or a duly authorized committee thereof shall have
duly adopted final resolutions (the "Final Debt Resolutions") authorizing the
issuance and sale of such Debt Securities as contemplated by the Registration
Statement, the Prospectus, the applicable Prospectus Supplement and the
Indenture, (iv) such series of Debt Securities shall have been (A) duly executed
by the Company and authenticated by the Trustee as provided in the Indenture and
the Final Debt Resolutions and (B) duly delivered to the purchasers thereof
against payment of the agreed consideration therefor, as provided in the
Registration Statement, the Prospectus, the applicable Prospectus Supplement,
the Indenture and the Final Debt Resolutions. If such Debt Securities are
Underlying Registered Securities, the opinion set forth in this paragraph is
subject to the further condition that the Convertible Registered Securities
relating to such Debt Securities, at the time of the issuance thereof and of the
conversion, exchange or exercise thereof, are validly issued, fully paid and
non-assessable by the Company or are validly issued and binding obligations of
the Company, as applicable.
2. Each series of Preferred Shares will be validly issued, fully paid
and non-assessable by the Company when (i) the Registration Statement shall have
become effective under the Securities Act, (ii) a Prospectus Supplement with
respect to such Preferred Shares shall have been filed with the Commission
pursuant to Rule 424 under the Securities Act, (iii) the Company's Board of
Directors or a duly authorized committee thereof shall have duly adopted final
resolutions (the "Final Preferred Shares Resolutions") authorizing the issuance
and sale of such Preferred Shares as contemplated by the Registration Statement,
the Prospectus and the applicable Prospectus Supplement, (iv) a Certificate of
Designation setting forth the terms of such series of Preferred Shares,
including establishing a sufficient quantity thereof and setting forth the
preferences, restrictions, limitations as to dividends, qualifications and terms
and conditions of redemption, consistent with the Final Preferred Shares
Resolutions, shall have been duly executed and filed with and accepted for
record by the Secretary of the State of the State of Delaware, and (v)
certificates evidencing such Preferred Shares shall have been duly executed,
countersigned and registered and duly delivered to the purchasers thereof
against payment of the agreed consideration therefor (and in any event an amount
at least equal to the par value, if any, thereof), as provided in the
Registration Statement, the Prospectus, the applicable Prospectus Supplement and
the Final Preferred Shares Resolutions. If such Preferred Shares are Underlying
Registered Securities, the opinions set forth in this paragraph is subject to
the further condition that the Convertible Registered Securities relating to
such Preferred Shares, at the time of the issuance thereof and of the
conversion, exchange or exercise thereof, are validly issued, fully
American Tower Corporation
May 26, 2000
Page 5
paid and non-assessable by the Company or are validly issued and binding
obligations of the Company, as applicable.
3. The Depositary Shares will be validly issued, fully paid and
non-assessable by the Company and the Depositary Receipts will be validly issued
and will entitle the holders thereof to the rights specified therein and in the
applicable Depositary Agreement, when (i) the conditions set forth in paragraph
2 above with respect to the related Preferred Shares are met, (ii) the Company's
Board of Directors or a duly authorized committee thereof shall have duly
adopted final resolutions (the "Final Depositary Shares Resolutions") approving
one or more depositary agreements, including a form of Depositary Receipt set
forth therein or related thereto (each, a "Depositary Agreement"), relating to
such Depositary Shares, between the Company and a financial institution
identified therein as depositary (each, a "Depositary"), (iii) the applicable
Depositary Agreement shall have been duly executed and delivered by the Company
and the Depositary, (iv) the related Preferred Shares shall have been duly
deposited with the Depositary under the Depositary Agreement and (v) the
applicable Depositary Receipts shall have been duly executed by the Depositary
as provided in the applicable Depositary Agreement and the Final Depositary
Shares Resolutions and registered and shall have been delivered to the
purchasers thereof against payment of the agreed consideration therefor, as
provided in the Registration Statement, the Prospectus, the applicable
Prospectus Supplement, the applicable Depositary Agreement and the Final
Depositary Shares Resolutions.
4. The Common Shares will be validly issued, fully paid and
non-assessable by the Company when (i) the Registration Statement shall have
become effective under the Securities Act, (ii) a Prospectus Supplement with
respect to such Common Shares shall have been filed with the Commission pursuant
to Rule 424 under the Securities Act, (iii) the Company's Board of Directors or
a duly authorized committee thereof shall have duly adopted final resolutions
(the "Final Common Shares Resolutions") authorizing the issuance and sale of
such Common Shares as contemplated by the Registration Statement, the Prospectus
and the applicable Prospectus Supplement, and (iv) certificates evidencing such
Common Shares shall have been duly executed, countersigned and registered and
duly delivered to the purchasers thereof against payment of the agreed
consideration therefor (and in any event an amount at least equal to the par
value thereof), as provided in the Registration Statement, the Prospectus, the
applicable Prospectus Supplement and the Final Common Shares Resolutions. If
such Common Shares are Underlying Registered Securities, the opinion set forth
in this paragraph is subject to the further condition that the Convertible
Registered Securities relating to such Common Shares, at the time of the
issuance thereof and of the conversion, exchange or exercise thereof, are
validly issued, fully paid and non-assessable by the Company or are validly
issued and binding obligations of the Company, as applicable.
5. The Warrants will be duly authorized and validly issued and binding
obligations of the Company when (i) the Registration Statement shall have become
effective under the Securities Act, (ii) a Prospectus Supplement with respect to
such Warrants shall have been filed with the Commission pursuant to Rule 424
under the Securities Act, (iii) the Company's Board of Directors or a duly
authorized committee thereof shall have duly adopted final resolutions (the
"Final Warrant Resolutions") authorizing the issuance and sale of such Warrants
as contemplated
American Tower Corporation
May 26, 2000
Page 6
by the Registration Statement, the Prospectus and the applicable Prospectus
Supplement and approving one or more warrant agreements, including a form of
warrant set forth therein or related thereto (each, a "Warrant Agreement"),
establishing the terms and conditions of such Warrants, between the Company and
a financial institution identified therein as warrant agent (each, a "Warrant
Agent"), (iv) the applicable Warrant Agreement shall have been duly executed and
delivered by the Company and the Warrant Agent, and (v) such Warrants shall have
been duly executed by the Company and authenticated by the Warrant Agent as
provided in the applicable Warrant Agreement and the Final Warrant Resolutions
and registered and shall have been duly delivered to the purchasers thereof
against payment of the agreed consideration therefor, as provided in the
Registration Statement, the Prospectus, the applicable Prospectus Supplement,
the applicable Warrant Agreement and the Final Warrant Resolutions. If such
Warrants are Underlying Registered Securities, the opinion set forth in this
paragraph is subject to the further condition that the Convertible Registered
Securities relating to such Warrants, at the time of the issuance thereof and of
the conversion, exchange or exercise thereof, are validly issued, fully paid and
non-assessable by the Company or are validly issued and binding obligations of
the Company, as applicable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Prospectus
forming a part of the Registration Statement. In giving such consent, we do not
thereby admit that we come within the category of persons whose consent is
required under Section 7 of the Act or under the rules and regulations of the
Commission promulgated thereunder.
Very truly yours,
/s/ SULLIVAN & WORCESTER LLP
SULLIVAN & WORCESTER LLP
Exhibit 12
Ratio of Earnings to Fixed Charges
American Tower Corporation
The following table reflects the computation of the ratio of earnings to fixed
charges for the periods presented.
Period from July 17, 1995 Three Months
Computation of (Incorporation) Ended
Earnings: to December 31, 1995 Year ended December 31, March 31,
--------------------------
1996 1997 1998 1999 2000
---- ---- ---- ---- ----
Loss Before Income
Taxes and
Extraordinary Losses $ (184) $ (434) $ (2,049) $(42,441) $(49,141) $(51,100)
Add:
Interest Expense ..... -- -- 3,040 23,229 27,492 32,310
Operating Leases ..... 2 126 633 3,245 6,963 2,957
-------- -------- -------- -------- -------- --------
Earnings as Adjusted . (182) (308) 1,624 (15,967) (14,686) (15,833)
Computation of Fixed
Charges:
Interest Expense ..... -- -- 3,040 23,229 27,492 32,310
Interest Capitalized . -- -- 458 1,403 3,379 2,495
Operating Leases ..... 2 126 633 3,245 6,963 2,957
-------- -------- -------- -------- -------- --------
Fixed Charges ........ 2 126 4,131 27,877 37,834 37,762
Ratio of Earnings to
Fixed Charges ...... -- -- .39 -- -- --
Deficiency in Earnings
Required to Cover
Fixed Charges ...... $ 184 $ 434 $ 2,507 $ 43,844 $ 52,520 $ 53,595
(1) Interest expense includes amortization of deferred financing costs for the years ended December 31, 1997, 1998 and
1999 and the three months ended March 31, 2000. Interest expense also includes redeemable preferred stock dividends
in the aggregate amount of $3.1 million for the year ended December 31, 1998.
(2) For purposes of this calculation, "earnings" consist of loss before income taxes and extraordinary losses and fixed
charges (excluding interest capitalized). "Fixed charges" consist of interest expensed and capitalized,
amortization or debt discount and related issuance costs and the component of rental expense associated with
operating leases believed by management to be representative of the interest factor thereon (30%).
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of American Tower Corporation on Form S-3 of our report dated March 1, 2000,
appearing in the Annual Report on Form 10-K of American Tower Corporation for
the year ended December 31, 1999, and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/S/ DELOITTE & TOUCHE LLP
Boston, Massachusetts
May 26, 2000
Exhibit 23.3
Accountants' Consent
The Board of Directors
UNIsite, Inc. and Subsidiaries:
We consent to the incorporation by reference in the registration statement
on Form S-3 of American Tower Corporation of our report dated January 14, 2000,
with respect to the consolidated balance sheets of UNIsite, Inc. and
Subsidiaries as of December 31, 1999 and 1998, and the related consolidated
statements of operations, redeemable convertible preferred stock and
stockholders' deficit, and cash flows for each of the years in the three-year
period ended December 31, 1999 which report appears in the Form 8-K of American
Tower Corporation dated March 30, 2000, and to the reference to our firm under
the heading "Experts" in the prospectus.
/s/ KPMG LLP
Tampa, Florida
May 26, 2000
Exhibit 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
ICG Satellite Services, Inc.
We consent to the incorporation by reference in the registration statement
on Form S-3 of American Tower Corporation of our report dated February 28, 2000,
with respect to the consolidated balance sheet of ICG Satellite Services, Inc.
and subsidiary as of November 30, 1999, and the related consolidated statements
of operations and accumulated deficit and cash flows for the eleven month period
ended November 30, 1999, which report appears in the Form 8-K of American Tower
Corporation dated March 30, 2000, and to the reference to our firm under the
heading "Experts" in the prospectus.
/s/ KPMG LLP
Denver, Colorado
May 25, 2000