Exhibit 4.2
------------------------------------------------------------------
ALLTEL CORPORATION
TO
X. X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
AS TRUSTEE
TENTH SUPPLEMENTAL INDENTURE
DATED AS OF MAY __, 2002
PROVIDING FOR ISSUANCE OF
$_____________ PRINCIPAL AMOUNT OF
___% SENIOR NOTES DUE MAY 17, 2007
------------------------------------------------------------------
Table of Contents Page
----------------- ----
ARTICLE ONE DEFINITIONS........................................................2
Section 1.01 Definition of Terms..........................................2
ARTICLE TWO GENERAL TERMS AND CONDITIONS OF THE NOTES..........................4
Section 2.01 Designation and Principal Amount.............................4
Section 2.02 Maturity.....................................................4
Section 2.03 Form, Payment and Appointment................................4
Section 2.04 Global Notes.................................................5
Section 2.05 Interest.....................................................5
ARTICLE THREE REDEMPTION OF THE NOTES..........................................7
Section 3.01 Tax Event Redemption.........................................7
Section 3.02 Redemption Procedures for Notes..............................7
Section 3.03 No Sinking Fund..............................................7
Section 3.04 Option to Put Notes upon Failed Secondary Remarketing........7
Section 3.05 Repurchase Procedure for Notes...............................8
ARTICLE FOUR REGISTERED GLOBAL SECURITIES......................................8
Section 4.01 Definitions..................................................8
Section 4.02 Execution and Authentication.................................9
Section 4.03 Additional Terms.............................................9
Section 4.04 Transfer.....................................................9
ARTICLE FIVE NOTICE...........................................................11
Section 5.01 Notice by the Company.......................................11
ARTICLE SIX FORM OF NOTE......................................................11
Section 6.01 Form of Note................................................11
i
ARTICLE SEVEN ORIGINAL ISSUE OF DISCOUNT......................................22
Section 7.01 Original Issue of Discount..................................22
ARTICLE EIGHT REMARKETING.....................................................22
Section 8.01 Initial Remarketing Procedures..............................22
Section 8.02 Secondary Remarketing Procedures............................24
ARTICLE NINE MISCELLANEOUS....................................................27
Section 9.01 Ratification of Indenture...................................27
Section 9.02 Trustee Not Responsible for Recitals........................27
Section 9.03 New York Law to Govern......................................27
Section 9.04 Separability................................................27
Section 9.05 Counterparts................................................27
Section 9.06 Provisions of Base Indenture Not Applicable.................28
Section 9.07 Provisions of the Indenture and Notes for
the Sole Benefit of the Parties and the
Holders of the Notes........................................28
Section 9.08 Provisions Required by Trust Indenture Act
of 1939 to Control..........................................28
Section 9.09 Ranking.....................................................28
ii
THIS TENTH SUPPLEMENTAL INDENTURE (the "Tenth Supplemental
Indenture"), dated as of May __, 2002, made and entered into by and between
ALLTEL CORPORATION, a corporation duly organized and existing under the laws of
the State of Delaware, with its principal offices located at One Allied Drive,
Little Rock, Arkansas (hereinafter referred to as the "Company"), and X. X.
XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, a successor to Ameritrust Company
National Association, as trustee (hereinafter referred to as the "Trustee").
WHEREAS, the Company has duly executed and delivered to the Trustee an
Indenture dated as of January 1, 1987 (hereinafter referred to as the "Base
Indenture"), as supplemented by a First Supplemental Indenture dated as of March
1, 1987, a Second Supplemental Indenture dated as of April 1, 1989, a Third
Supplemental Indenture dated as of May 8, 1990, a Fourth Supplemental Indenture
dated as of March 1, 1991, a Fifth Supplemental Indenture dated as of October 1,
1993, a Sixth Supplemental Indenture dated as of April 1, 1994, a Seventh
Supplemental Indenture dated as of September 1, 1995, an Eighth Supplemental
Indenture dated as of March 1, 1996 and a Ninth Supplemental Indenture dated as
of April 1, 1999 (the Base Indenture and all supplemental indentures thereto
being hereinafter collectively, referred to as the "Indenture"), providing for
the periodic issuance of debt securities in series; and
WHEREAS, Section 2.02(a) of the Base Indenture provides for the
issuance of any Series (as defined in the Base Indenture) of Securities (as
defined in the Base Indenture) pursuant to a Board Resolution (as defined in the
Base Indenture) or by the execution and delivery to the Trustee of an indenture
supplemental to the Indenture authorized and approved by the Board of Directors
of the Company; and
WHEREAS, Section 2.01 of the Base Indenture provides that all Series
of Securities shall be equally and ratably entitled to the benefits of the
Indenture; and
WHEREAS, the Company desires in and by this Tenth Supplemental
Indenture to provide for the creation and issuance of $__________________
principal amount of ___% Senior Notes due May 17, 2007 (hereinafter referred to
as the "Notes") in accordance with and under the terms and provisions of the
Indenture; and
WHEREAS, the Board of Directors of the Company has duly authorized the
execution and delivery of this Tenth Supplemental Indenture providing for the
issuance of the Notes as herein provided; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this Tenth Supplemental Indenture and all requirements necessary to make
this Tenth Supplemental Indenture a valid, binding and enforceable instrument in
accordance with its terms, and to make the Notes, when executed by the Company
and authenticated and delivered by the Trustee, the valid, binding and
enforceable obligations of the Company, and all acts and things necessary have
been done and performed to make this Tenth Supplemental Indenture enforceable in
accordance with its terms, and the execution and delivery of this Tenth
Supplemental Indenture has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Notes by the Holders thereof, and for the purpose of setting forth, as provided
in the Base Indenture, the form and substance of the Notes and the terms,
provisions and conditions thereof, the Company covenants and agrees with the
Trustee as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01 Definition of Terms.
-------------------
Unless the context otherwise requires:
(a) a term defined in the Base Indenture has the same meaning when
used in this Tenth Supplemental Indenture;
(b) a term defined anywhere in this Tenth Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not
affect interpretation;
(e) the following terms have the meanings given to them in the
Purchase Contract Agreement (i) Agent; (ii) Applicable Principal Amount,
(iii) Authorized Newspaper; (iv) Cash Settlement; (v) Clearing Agency; (vi)
Clearing Agency Participant; (vii) Corporate Units; (viii) Failed Secondary
Remarketing; (ix) Initial Remarketing; (x) Initial Remarketing Date; (xi)
Purchase Agreement, (xii) Purchase Contract; (xiii) Quotation Agent; (xiv)
Redemption Price; (xv) Reset Agent; (xvi) Reset Announcement Date; (xvii)
Reset Rate; (xviii) Reset Spread; (xix) Secondary Remarketing; (xx)
Secondary Remarketing Date; (xxi) Tax Event; (xxii) Treasury Portfolio;
(xxiii) Treasury Portfolio Purchase Price; (xxiv) Treasury Units; (xxv)
Two-Year Benchmark Treasury; and (xxvi) Two and One-Quarter Year Benchmark
Treasury;
(f) the following terms have the meanings given to them in this
Section 1.01(f):
"Business Day" means, with respect to the Notes, any day other
than a day on which federal or state banking institutions in the
Borough of Manhattan, The City of New York, are authorized or
obligated by law, executive order or regulation to close.
"Coupon Rate" shall have the meaning set forth in Section
2.05.
"Depositary" shall have the meaning set fort in Section 4.01.
2
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time to
time.
"Failed Initial Remarketing" shall have the meaning set forth
in Section 8.01(g).
"Failed Secondary Remarketing" shall have the meaning set
forth in Section 8.02(h).
"Global Notes" shall have the meaning set forth in Section
2.04.
"Interest Payment Date" shall have the meaning set forth in
Section 2.05.
"Maturity Date" shall have the meaning specified in Section
2.02.
"Notes" shall have the meaning specified in Section 2.01.
"Note Repayment Price" shall have the meaning set forth in
Section 3.04.
"Place of Payment" shall have the meaning set forth in Section
2.03.
"Pledge Agreement" means the Pledge Agreement dated as of May
__, 2002 among the Company, _____________, as collateral agent,
custodial agent and securities intermediary (the "Collateral Agent")
and X. X. Xxxxxx Trust Company, National Association, as purchase
contract agent and attorney-in-fact.
"Purchase Contract Agreement" means the Purchase Contract
Agreement dated as of May __, 2002, among the Company and X. X. Xxxxxx
Trust Company, National Association, as purchase contract agent.
"Purchase Contract Settlement Date" means May 17, 2005.
"Put Option" shall have the meaning set forth in Section 3.04.
"Put Option Exercise Date" shall have the meaning set forth in
Section 3.04.
"Registered Global Security" shall have the meaning set forth
in Section 4.01
"Regular Record Date" means, with respect to any Interest
Payment Date for the Notes, the close of business on the first day of
the month in which such Interest Payment Date falls.
"Remarketing Agent" means Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated or any successor thereto or replacement Remarketing
Agent under the Remarketing Agreement.
3
"Remarketing Agreement" means the Remarketing Agreement, dated
as of May __, 2002, between the Remarketing Agent and X. X. Xxxxxx
Trust Company, National Association, as purchase contract agent and
attorney-in-fact.
"Reset Effective Date" means (i) February 17, 2005 in case the
interest rate is reset on the Initial Remarketing Date or (ii) the
Purchase Contract Settlement Date, in case the interest rate is reset
on the Secondary Remarketing Date.
"Tax Event Redemption Date" shall have the meaning set forth
in Section 3.05.
The terms "Base Indenture" and "Indenture" shall have the respective
meanings set forth in the recitals to this Tenth Supplemental Indenture and the
paragraph preceding such recitals.
ARTICLE TWO
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.01 Designation and Principal Amount.
--------------------------------
There is hereby authorized a series of Securities designated the __%
Senior Notes due May 17, 2007 (the "Notes"), limited (except as otherwise
provided in Article Two of the Base Indenture) in aggregate principal amount up
to $1,437,500,000. The Notes may be issued from time to time upon written order
of the Company for the authentication and delivery of Notes pursuant to Section
2.03 of the Base Indenture.
Section 2.02 Maturity.
--------
The date upon which the Notes shall become due and payable at final
maturity, together with any accrued and unpaid interest, is May 17, 2007 (the
"Maturity Date").
Section 2.03 Form, Payment and Appointment.
-----------------------------
Except as provided in Section 2.04, the Notes shall be issued in fully
registered, certificated form, bearing identical terms. Principal of and
premium, if any, and interest on the Notes will be payable, the transfer of such
Notes will be registrable and such Notes will be exchangeable for Notes bearing
identical terms and provisions at the office or agency of the Company maintained
for such purpose as described below; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the Holder at such
address as shall appear in the register or by wire transfer to an account
appropriately designated by the Holder entitled to payment.
The Company hereby designates the Borough of Manhattan, The City of
New York as the place of payment ("Place of Payment") for the Notes, and the
office or agency
4
maintained by the Company in such Place of Payment for the purposes contemplated
by this Section 2.03 shall initially be the Corporate Trust Office of the
Trustee.
The Registrar, transfer agent and Paying Agent for the Notes shall
initially be the Trustee.
The Notes shall be issuable in denominations of $50 and integral
multiples of $50 in excess thereof.
The Notes may be issued, in whole or in part, in permanent global form
and, if issued in permanent global form, the Depositary shall be The Depository
Trust Company or such other depositary as any officer of the Company may from
time to time designate.
Section 2.04 Global Notes.
------------
(a) Any Notes that are no longer part of Corporate Units will be
issued initially in the form of one or more Registered Global Securities (the
"Global Notes") registered in the name of the Depositary or its nominee. Unless
and until they are exchanged for the Notes in registered form, such Global Notes
may be transferred, in whole but not in part, only to the Clearing Agency or a
nominee of the Clearing Agency, or to a successor Clearing Agency selected or
approved by the Company or to a nominee of such successor Clearing Agency.
(b) If at any time (i) the Clearing Agency notifies the Company
that it is unwilling or unable to continue as a Clearing Agency for the Global
Notes and no successor Clearing Agency shall have been appointed within 90 days
after such notification, (ii) the Clearing Agency ceases to be a clearing agency
registered under the Exchange Act at any time the Clearing Agency is required to
be so registered to act as such Clearing Agency and no successor Clearing Agency
shall have been appointed within 90 days after the Company becoming aware of the
Clearing Agency's ceasing to be so registered, (iii) the Company, in its sole
discretion, determines that the Global Notes shall be so exchangeable or (iv)
there shall have occurred and be continuing an Event of Default, the Company
will execute, and subject to Article Two of the Base Indenture, the Trustee,
upon written notice from the Company, will authenticate and deliver the Notes in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global Note
in exchange for such Global Note.
Upon exchange of the Global Note for such Notes in definitive
registered form without coupons, in authorized denominations, the Global Note
shall be cancelled by the Trustee. Such Notes in definitive registered form
issued in exchange for the Global Note shall be registered in such names and in
such authorized denominations as the Clearing Agency, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the Clearing Agency for
delivery to the Persons in whose names such Securities are so registered.
Section 2.05 Interest.
--------
(a) The Note will bear interest (i) initially at the rate of __%
per year (the "Coupon Rate") from __________ through and including the day
immediately preceding the
5
Reset Effective Date, (ii) at the Reset Rate thereafter until the principal
thereof is paid or duly made available for payment and (iii) to the extent
permitted by law, compounded quarterly, on any overdue principal and premium, if
any, and on any overdue installment of interest at the Coupon Rate through and
including the day immediately preceding the Reset Effective Date and at the
Reset Rate thereafter. Interest is payable quarterly in arrears on February 17,
May 17, August 17 and November 17 of each year (each, an "Interest Payment
Date") commencing on August 17, 2002, to the Person in whose name such Note, or
any predecessor Note, is registered at the close of business on the Regular
Record Date for such interest installment.
(b) The interest rate on the Notes will be reset on the Initial
Remarketing Date to the applicable Reset Rate (which Reset Rate will be
effective on and after February 17, 2005) except in the event of a Failed
Initial Remarketing. In the event of a Failed Initial Remarketing, the interest
rate on the Notes will be reset on the Secondary Remarketing Date to the
applicable Reset Rate (which Reset Rate will be effective on and after the
Purchase Contract Settlement Date), except in the event of a Failed Secondary
Remarketing. On the applicable Reset Announcement Date, the applicable Reset
Spread and the Two-Year Benchmark Treasury or Two and One-Quarter Year Benchmark
Treasury, as applicable, will be announced by the Company and certified to the
Trustee in an Officer's Certificate. On the Business Day immediately following
such Reset Announcement Date, the Holders of Notes and the Trustee will be
notified of such Reset Spread and Two-Year Benchmark Treasury or Two and
One-Quarter Year Benchmark Treasury, as applicable, by the Company. Such notice
shall be sufficiently given to such Holders of Notes if published in an
Authorized Newspaper.
(c) Not later than seven calendar days nor more than 15 calendar
days immediately preceding the applicable Reset Announcement Date, the Company
will request that the Clearing Agency or its nominee (or any successor Clearing
Agency or its nominee) notify the Holders of Notes of such Reset Announcement
Date and, in the case of a Secondary Remarketing, the procedures to be followed
by such Holders of Notes wishing to settle the related Purchase Contracts with
separate cash on the Business Day immediately preceding the Purchase Contract
Settlement Date.
(d) The amount of interest payable for any period will be computed
on the basis of a 360-day year consisting of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period other than a full quarterly period for which interest is computed will be
computed on the basis of the actual number of days elapsed in such a 90-day
period. In the event that any date on which interest is payable on the Notes is
not a Business Day, then payment of interest payable on such date will be made
on the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
6
ARTICLE THREE
REDEMPTION OF THE NOTES
Section 3.01 Tax Event Redemption.
--------------------
If a Tax Event shall occur and be continuing, the Company may, at its
option, redeem the Notes in whole (but not in part) at any time at a price per
Note equal to the Redemption Price. Installments of interest on Notes which are
due and payable on or prior to the date upon which a Tax Event Redemption is to
occur (the "Tax Event Redemption Date") will be payable to the Holders of the
Notes registered as such at the close of business on the applicable Regular
Record Date relating to such interest payment. If, following the occurrence of
a Tax Event prior to the Purchase Contract Settlement Date, the Company
exercises its option to redeem the Notes, the Company shall appoint the
Quotation Agent to assemble the Treasury Portfolio in consultation with the
Company. Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the Tax Event Redemption Date to each registered Holder of
the Notes to be repaid at its registered address. Unless the Company defaults
in payment of the Redemption Price, on and after the Tax Event Redemption Date
interest shall cease to accrue on the Notes. After the date on which the
Company delivers notice to Holders of Notes of the Tax Event Redemption in
accordance with this Indenture, neither the Company nor the Trustee will be
required to register or cause to be registered the transfer or exchange of the
Notes.
Section 3.02 Redemption Procedures for Notes.
-------------------------------
Payment of the Redemption Price to each Holder of Notes shall be made
by the Company, no later than 12:00 noon, New York City time, on the Tax Event
Redemption Date, by check or wire transfer in immediately available funds at
such place and to such account as may be designated by each such Holder of
Notes, including the Trustee or the Collateral Agent, as the case maybe. If the
Trustee holds immediately available funds sufficient to pay the Redemption Price
of the Notes, then, on such Tax Event Redemption Date, such Notes will cease to
be outstanding and interest thereon will cease to accrue, whether or not such
Notes have been received by the Company, and all other rights of the Holder in
respect of the Notes shall terminate and lapse (other than the right to receive
the Redemption Price upon delivery of such Notes but without interest on such
Redemption Price).
Section 3.03 No Sinking Fund.
---------------
The Notes are not entitled to the benefit of any sinking fund.
Section 3.04 Option to Put Notes upon Failed Secondary Remarketing.
-----------------------------------------------------
If a Failed Secondary Remarketing has occurred, Holders of Notes
following the Purchase Contract Settlement Date shall have the right (the "Put
Option") to put or sell such Notes to the Company on June 30, 2005 (the "Put
Option Exercise Date"), upon at least three Business Days prior notice, at a
repayment price equal to the principal amount of such Notes plus an amount equal
to the accrued and unpaid interest thereon to the date of payment (the "Note
Repayment Price"). The right of any Holder to the Note Repayment Price shall be
subject to the rights of the Company as a secured party under the Pledge
Agreement.
7
Section 3.05 Repurchase Procedure for Notes.
------------------------------
(a) In order for the Notes to be repurchased on the Put Option
Exercise Date, the Trustee must receive on or prior to 5:00 p.m., New York City
time, on the third Business Day immediately preceding the Put Option Exercise
Date, at its Corporate Trust Office or at an office or agency maintained by the
Company in the Borough of Manhattan, The City of New York as contemplated by
Section 2.03 hereof, the Notes to be repurchased with the form entitled "Option
to Elect Repayment" on the reverse of or otherwise accompanying such Notes duly
completed. Any such notice received by the Trustee shall be irrevocable. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of the Notes for repayment shall be determined by the Company, whose
determination shall be final and binding.
(b) Payment of the Note Repayment Price shall be made through the
Trustee, subject to the Trustee's receipt of payment from the Company in
accordance with the terms of the Indenture, no later than 12:00 noon, New York
City time, on the Put Option Exercise Date, and to such account as may be
designated by the applicable Holder. If the Trustee holds immediately available
funds sufficient to pay the Note Repayment Price of Notes presented for
repayment, then, immediately prior to the close of business on the Put Option
Exercise Date, such Notes will cease to be outstanding and Interest thereon will
cease to accrue, whether or not such Notes have been received by the Company,
and all other rights of the Holder in respect of the Notes, including the
Holder's right to require the Company to repay such Notes, shall terminate and
lapse (other than the right to receive the Note Repayment Price upon delivery of
such Notes but without interest on such Note Repayment Price). Neither the
Trustee nor the Company will be required to register or cause to be registered
the transfer of any Note for which repayment has been elected.
ARTICLE FOUR
REGISTERED GLOBAL SECURITIES
Section 4.01 Definitions.
-----------
"Depositary" means, with respect to the Securities of any Series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Company pursuant to Section 4.02 of this
Tenth Supplemental Indenture until a successor Depositary shall have become such
pursuant to the applicable provisions of this Tenth Supplemental Indenture, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such Series shall
mean the Depositary with respect to the Registered Global Securities of that
Series.
"Registered Global Security" means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such Series
or its nominee in accordance with Section 4.02 of this Tenth Supplemental
Indenture, and bearing the legend prescribed in Section 4.02 of this Tenth
Supplemental Indenture.
8
Section 4.02 Execution and Authentication.
----------------------------
If the Company shall establish pursuant to Section 4.03 of this Tenth
Supplemental Indenture that the Securities of a Series or a portion thereof are
to be issued in the form of one or more Registered Global Securities, then the
Company shall execute and the Trustee shall authenticate and deliver one or more
Registered Global Securities that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of all of the Securities of
such Series issued in such form and not yet canceled, (ii) shall be registered
in the name of the Depositary for such Registered Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instructions and (iv) shall
bear a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as a whole by the Depositary to the
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 4.03 of this Tenth
Supplemental Indenture must, at the time of its designation and at all time
while it serves as Depositary, be a clearing agency registered under the
Exchange Act, and any other applicable statute or regulation.
Section 4.03 Additional Terms. (a) At or prior to the issuance of
----------------
the Notes authorized to be issued under this Tenth Supplemental Indenture, or at
or prior to the issuance of any other Series of Securities under the Indenture
or this Tenth Supplemental Indenture, the following terms with respect to
Registered Global Securities may be established at the Company's discretion, in
addition to any and all terms established in accordance with Section 2.02 of the
Base Indenture, pursuant to a Board Resolution or by an indenture supplemental
hereto:
(1) whether the Securities of the Series or any portion thereof
will be issuable as Registered Global Securities;
(2) if the Securities of the Series are issuable in whole or in
part as one or more Registered Global Securities, the identity of the
Depositary for such Registered Global Security or Securities.
(b) If any of the foregoing terms are established pursuant to a
Board Resolution, the Company shall comply with the procedures and
requirements set forth in Section 2.02(b) of the Base Indenture.
Section 4.04 Transfer. Notwithstanding any provisions of Section 2.08
--------
of the Base Indenture, unless and until it is exchanged in whole or in part for
Securities in definitive registered form, a Registered Global Security
representing all or a portion of the Securities of a Series may not be
transferred except as a whole by the Depositary for such Series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of
9
such Depositary or by such Depositary or any such nominee to a successor
Depositary for such Series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of
any Series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under Section 4.02 of this Tenth Supplemental Indenture, the Company shall
appoint a successor Depositary eligible under Section 4.02 of this Tenth
Supplemental Indenture with respect to such Registered Global Securities. If a
successor Depositary eligible under Section 4.02 of this Tenth Supplemental
Indenture for such Registered Global Securities is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee, upon receipt of the
Company's order for the authentication and delivery of definitive Registered
Securities of such Series, will authenticate and deliver, Registered Securities
of such Series and tenor, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of such Registered Global
Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion determine that
any Registered Global Securities of any Series shall no longer be maintained in
global form. In such event the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of definitive
Securities of such Series, will authenticate and deliver, Securities of such
Series and tenor in definitive registered from without coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
Any time the Registered Securities of any Series are not in the form
of Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 4.02 of this Tenth
Supplemental Indenture and the Trustee agrees to hold such Registered Securities
in safekeeping until authenticated and delivered pursuant to the terms of this
Indenture.
If established by the Company pursuant to Section 4.03 of this Tenth
Supplemental Indenture with respect to any Registered Global Security, the
Depositary for such Registered Global Security may surrender such Registered
Global Security in exchange in whole or in part for Registered Securities of the
same Series and tenor in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same Series and tenor, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Registered Global
Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Registered Global Security and the aggregate principal
amount of Registered Securities
10
authenticated and delivered pursuant to clause (i) above. Registered
Securities issued in exchange for a Registered Global Security pursuant to
this Section 4.04 shall be registered in such names and in such authorized
denominations as the Depositary for such Registered Global Security,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the
Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the persons in whose names such Securities are so registered.
ARTICLE FIVE
NOTICE
Section 5.01 Notice by the Company
---------------------
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Notes.
Notwithstanding any of the provisions of the Base Indenture and this Tenth
Supplemental Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Notes; provided, however, that if the
Trustee shall not have received the notice provided for in this Article Five at
least two 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 (or premium, if any) or interest on any Note), 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
purposes for which they were received, and shall not be affected by any notice
to the contrary that may be received by it within two Business Days prior to
such date.
ARTICLE SIX
FORM OF NOTE
Section 6.01 Form of Note.
------------
The Notes and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms, with such
changes therein as the officers of the Company executing the Notes (by manual or
facsimile signature) may approve, such approval to be conclusively evidenced by
their execution thereof:
(FORM OF FACE OF NOTE)
IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - THIS NOTE IS A GLOBAL NOTE WITHIN
THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY OR A NOMINEE OF THE DEPOSITORY TRUST
COMPANY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE ONLY IN THE LIMITED
11
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TRUST COMPANY TO A
NOMINEE OF THE DEPOSITORY TRUST COMPANY OR BY A NOMINEE OF THE DEPOSITORY TRUST
COMPANY TO THE DEPOSITORY TRUST COMPANY OR ANOTHER NOMINEE OF THE DEPOSITORY
TRUST COMPANY OR TO A SUCCESSOR CLEARING AGENCY OR TO A NOMINEE OF SUCH
SUCCESSOR) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
12
CUSIP No.________________
$________________________
ALLTEL CORPORATION
SENIOR NOTE
DUE 2007
ALLTEL CORPORATION, a Delaware corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to____________________, or registered
assigns, the principal sum of_________________ Dollars ($___________) on May 17,
2007 (such date is hereinafter referred to as the "Maturity Date"), and to pay
interest on said principal sum from May __, 2002 or from the next recent date to
which interest has been paid or duly provided for, quarterly in arrears on
February 17, May 17, August 17 and November 17 of each year (each such date, an
"Interest Payment Date"), commencing on August 17, 2002, initially at the rate
of ___% per year through and including the day immediately preceding the Reset
Effective Date and at the Reset Rate thereafter until the principal hereof shall
have been paid or duly made available for payment and, to the extent permitted
by law, to pay interest, compounded quarterly, on any overdue principal and
premium, if any, and on any overdue installment of interest at the rate per year
of ___% through and including the day immediately preceding the Reset Effective
Date and at the Reset Rate thereafter. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year
consisting of twelve 30-day months and, except as provided in the Indenture (as
defined below), the amount of interest payable for any period shorter than a
full quarterly period for which interest is computed will be computed on the
basis of the actual number of days elapsed in such 90-day period. In the event
that any date on which interest is payable on this Note is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such Interest Payment Date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note (or one
or more predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest installment which shall be the close of
business on the first day of the month in which such Interest Payment Date
falls. Any such interest installment not punctually paid or duly provided for
on any Interest Payment Date shall forthwith cease to be payable to the
registered Holders at the close of business on such Regular Record Date and may
be paid to the Person in whose name this Note (or one or more predecessor
Securities) is registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders of this series of Notes not
less than 10 days prior to such special record date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange, if any, on which the Notes may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture. The principal of (and premium, if any)
13
and the interest on this Note shall be payable at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City of New
York in any coin or currency of the United States of America that at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the registered Holder at such address as shall appear in the
register or by wire transfer to an account appropriately designated by the
Holder entitled thereto and provided further that if the Holder of this Note is
the Purchase Contract Agent or the Collateral Agent, payment of interest will
only be paid by wire transfer to an account designated by such Holder.
The indebtedness evidenced by this Note is, to the extent provided in
the Indenture, senior and unsecured and will rank equal in right of payment to
all other senior unsecured obligations of the Company.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to or be valid or obligatory for any purpose until the
Certificate of Authentication shall have been signed by or on behalf of the
Trustee.
The provisions of this Note are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated: May __, 2002
ALLTEL CORPORATION,
as Issuer
By: _________________________
Name:
Title:
Attest:
By: _____________________________________
Name:
Title:
14
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to in
the within-mentioned Indenture.
Dated May __, 2002
X. X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By ___________________________________
Authorized Signatory
15
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Notes"), issued and to be issued
in one or more series under and pursuant to an Indenture dated as of January 1,
1987 (the "Base Indenture") duly executed and delivered between the Company and
X. X. Xxxxxx Trust Company, National Association, as successor trustee (the
"Trustee," which term includes any successor trustee under the Indenture), as
supplemented by a First Supplemental Indenture dated as of March 1, 1987, a
Second Supplemental Indenture dated as of April 1, 1989, a Third Supplemental
Indenture dated as of May 8, 1990, a Fourth Supplemental Indenture dated as of
March 1, 1991, a Fifth Supplemental Indenture dated as of October 1, 1993, a
Sixth Supplemental Indenture dated as of April 1, 1994, a Seventh Supplemental
Indenture dated as of September 1, 1995, an Eighth Supplemental Indenture dated
as of March 1, 1996, a Ninth Supplemental Indenture dated as of April 1, 1999
and a Tenth Supplemental Indenture, dated as of May __, 2002 between the Company
and the Trustee, to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Notes. By the terms of the Indenture, the Securities are
issuable in series that may vary as to amount, date of maturity, rate of
interest and in other respects as provided in the Indenture. This series of
Securities is limited in aggregate principal amount as specified in said Tenth
Supplemental Indenture.
If a Tax Event shall occur and be continuing, the Company may, at its
option, redeem the Notes in whole (but not in part) at any time at a price per
Note equal to the Redemption Price. The Redemption Price shall be paid to each
Holder of the Notes by the Company, no later than 12:00 noon, New York City
time, on the Tax Event Redemption Date, by check or wire transfer in immediately
available funds, at such place and to such account as may be designated by each
such Holder.
The Notes are not entitled to the benefit of any sinking fund.
If a Failed Secondary Remarketing (as described in Section 5.5(b) of
the Purchase Contract Agreement and incorporated herein by reference) has
occurred, each Holder who holds such Notes on the day immediately following the
Purchase Contract Settlement Date shall have the right (the "Put Option") to put
such Notes to the Company, on June 30, 2005 (the "Put Option Exercise Date"),
upon at least three Business Day's prior notice, at a repayment price equal to
the principal amount of this Note plus an amount equal to the accrued and unpaid
interest thereon to the date of payment (the "Note Repayment Price").
In order for the Notes to be so repurchased, the Trustee must receive,
on or prior to 5:00 p.m., New York City Time, on the third Business Day
immediately preceding the Put Option Exercise Date, at its Corporate Trust
Office, or at an office or agency maintained by the Company in the Borough of
Manhattan, The City of New York as contemplated by Section 2.03 of the Tenth
Supplemental Indenture, the Notes to be repurchased with the form entitled
"Option to Elect Repayment" on the reverse of or otherwise accompanying such
Notes duly completed. Any such notice received by the Trustee shall be
irrevocable. All questions as to the validity, eligibility (including time of
receipt) and acceptance of the Notes for repayment shall be determined by the
Company, whose determination shall be final and binding. The payment of
16
the Note Repayment Price in respect of such Notes shall be made no later than
12:00 noon, New York City time, on the Put Option Exercise Date.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable (or, in certain
circumstances shall ipso facto become due and payable), in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting, with certain exceptions
therein provided, the Company and the Trustee, with the consent of the Holders a
majority in aggregate principal amount of the outstanding Securities of each
series affected (with each series voting as a class) to execute supplemental
indentures for the purpose of, among other things, adding any provisions to or
changing or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying the rights of the Holders of the
Securities. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the outstanding Securities of each
series affected (with each series voting as a class), on behalf of all of the
Holders of all Securities of such series, to waive a Default or Event of Default
with respect to such series and its consequences, except a Default or Event of
Default in the payment of the principal of or premium, if any, or interest on
any of the Securities of such series or in respect of a covenant or other
provision which, under the terms of the Indenture, cannot be modified or amended
without the consent of the Holder of each outstanding Security of such series
affected. Any such consent or waiver by the registered Holder of this Note
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
in exchange for or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, this Note is transferable by the registered Holder hereof on
the register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose in
the Borough of Manhattan, The City of New York, accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company or the
Trustee duly executed by the registered Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of authorized
denominations and for the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note,
the Company, the Trustee, any Paying Agent and the Registrar may deem and treat
the registered Holder hereof as the absolute owner hereof (whether or not this
Note shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Registrar) for the purpose
17
of receiving payment of or on account of the principal hereof and premium, if
any, and interest due hereon and for all other purposes, and neither the Company
nor the Trustee nor any Paying Agent nor any Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
shareholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Indenture imposes certain limitations on the ability of the
Company to, among other things, merge or consolidate with any other Person, and
requires that the Company comply with certain further covenants. All such
covenants and limitations are subject to a number of important qualifications
and exceptions. The Company must report periodically to the Trustee on
compliance with the covenants in the Indenture.
The Notes of this series are issuable only in registered form without
coupons in denominations of $50 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Notes are subject to the covenants set forth in the Indenture.
This Note shall be governed by and construed in accordance with the
law of the State of New York.
18
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay $____ principal amount of the within Note, pursuant to its terms, on
the "Put Option Exercise Date," together with any interest thereon accrued but
unpaid to the date of repayment, to the undersigned at:
(Please print or type name and address of the undersigned)
and to issue to the undersigned, pursuant to the terms of the Indenture, a new
Note or Notes representing the remaining aggregate principal amount of this
Note.
For this Option to Elect Repayment to be effective, this Note with the Option to
Elect Repayment duly completed must be received by the Trustee at c/o JPMorgan
Chase Bank, 0000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxx 00000, Attention:
Institutional Trust Services, no later than 5:00 p.m. on the third Business Day
immediately preceding June 30, 2005.
Dated: ___________________ Signature: ___________________________________
Signature Guarantee: _________________________
Note: The signature to this Option to Elect Repayment must correspond with the
name as written upon the face of the within Note without alteration or
enlargement or any change whatsoever.
19
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
20
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him or her.
Date: ____________________
Signature:
________________________________
Signature Guarantee:__________________________
(Sign exactly as your name appears on the other side of this Note)
21
ARTICLE SEVEN
ORIGINAL ISSUE OF DISCOUNT
Section 7.01 Original Issue of Discount
--------------------------
If reasonably requested by the Trustee, the Company shall file with
the Trustee (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on the outstanding
Notes as of the end of the year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE EIGHT
REMARKETING
Section 8.01 Initial Remarketing Procedures
------------------------------
(a) The Company will request, not later than seven nor more than
15 calendar days prior to the Initial Remarketing Date that the Clearing Agency
notify the Holders of the Notes, the Holders of Corporate Units and the Holders
of Treasury Units of the Initial Remarketing.
(b) Not later than 5:00 P.M., New York City time, on the second
Business Day immediately preceding the Initial Remarketing Date, each Holder of
the Notes not constituting components of Corporate Units may elect to have Notes
held by such Holder remarketed. Holders of Notes that are not a component of
Corporate Units shall give notice of their election to have such Notes
remarketed to the Collateral Agent pursuant to the Pledge Agreement. Any such
notice shall be irrevocable after 5:00 P.M., New York City time, on the second
Business Day immediately preceding the Initial Remarketing Date and may not be
conditioned upon the level at which the Reset Rate is established. Promptly
after 5:30 P.M., New York City time, on such second Business Day, the Trustee,
based on the notices received by it prior to such time (including notices from
the Purchase Contract Agent as to Purchase Contracts for which Cash Settlement
has been elected), shall notify the Company and the Remarketing Agent of the
number of Notes to be tendered for remarketing. Under Section 5.4 of the
Purchase Contract Agreement, Notes that constitute components of Corporate Units
will be remarketed as provided therein and in this Section 8.01. The Notes
constituting components of Corporate Units shall be deemed tendered,
notwithstanding any failure by the Holder of such Corporate Units to deliver or
properly deliver such Notes to the Remarketing Agent for purchase.
(c) The right of each Holder to have Notes tendered for Initial
Remarketing or the Secondary Remarketing, as the case may be, shall be limited
to the extent that (i) the Remarketing Agent conducts an Initial Remarketing
and, in the event of a Failed Remarketing, a Secondary Remarketing pursuant to
the terms of the Remarketing Agreement, (ii) Notes tendered have not been called
for redemption, (iii) the Remarketing Agent is able to find a purchaser or
22
purchasers for tendered Notes at a price of not less than the minimum price
necessary to achieve a Successful Initial Remarketing, in the case of the
Initial Remarketing, and 100% of the principal amount thereof, in case of the
Secondary Remarketing, and (iv) such purchaser or purchasers deliver the
purchase price therefor to the Remarketing Agent as and when required. Each
Holder of Notes that are remarketed in a Successful Initial Remarketing agrees
that a remarketing fee in an amount set forth in the Remarketing Agreement shall
be deducted from the proceeds of the remarketing.
(d) On the Initial Remarketing Date, the Remarketing Agent shall
use reasonable efforts to remarket, at a price per Note such that the aggregate
price for the Applicable Principal Amount of Notes is equal to approximately
100.5% of the Treasury Portfolio Purchase Price, Notes tendered or deemed
tendered for purchase.
(e) If there are no Corporate Units outstanding and none of the
Holders elect to have Notes held by them remarketed, the Reset Rate shall be the
rate determined by the Reset Agent, subject to the terms of the Remarketing
Agreement, as the rate that would have been established had a remarketing been
held on the Initial Remarketing Date.
(f) If the Remarketing Agent has determined that it will be able
to remarket all Notes tendered or deemed tendered prior to 4:00 P.M., New York
City time, on the Initial Remarketing Date, the Reset Agent, subject to the
terms of the Remarketing Agreement, shall determine the Reset Rate.
(g) If, by 4:00 P.M., New York City time, on the Initial
Remarketing Date, (i) the Remarketing Agent is unable to remarket all Notes
tendered or deemed tendered for purchase, at the minimum price necessary to
achieve a Successful Initial Remarketing, or (ii) if the Initial Remarketing
shall not have occurred because a condition precedent to the Remarketing shall
not have been fulfilled, a failed remarketing ("Failed Initial Remarketing")
shall be deemed to have occurred and the Remarketing Agent shall so advise by
telephone the Collateral Agent, the Purchase Contract Agent, the Company, the
Trustee, and the Clearing Agency. If requested by the Collateral Agent, the
Purchase Contract Agent, the Trustee or the Clearing Agency, the Company shall
confirm such advice in writing.
(h) By approximately 4:30 P.M., New York City time, on the Initial
Remarketing Date, provided that there has not been a Failed Initial Remarketing,
the Remarketing Agent shall advise, by telephone (i) the Collateral Agent, the
Purchase Contract Agent, the Company, the Trustee, and the Clearing Agency of
the Reset Rate determined in the Initial Remarketing and the aggregate principal
amount of Notes sold in the Initial Remarketing, (ii) each purchaser (or the
Clearing Agency Participant thereof) of the Reset Rate and the aggregate
principal amount of Notes such purchaser is to purchase and (iii) each purchaser
to give instructions to its Clearing Agency Participant to pay the purchase
price on February 17, 2005 in same day funds against delivery of the Notes
purchased through the facilities of the Clearing Agency.
(i) In accordance with the Clearing Agency's normal procedures, on
February 17, 2005, the transactions described above with respect to each Note
tendered for purchase and sold in the Initial Remarketing shall be executed
through the Clearing Agency, and the accounts
23
of the respective Clearing Agency Participants shall be debited and credited and
such Notes delivered by book entry as necessary to effect purchases and sales of
such Notes. The Clearing Agency shall make payment in accordance with its
normal procedures.
(j) If any Holder selling Notes in the Initial Remarketing fails
to deliver such Notes, the Clearing Agency Participant of such selling Holder
and of any other Person that was to have purchased Notes in the Initial
Remarketing may deliver to any such other Person an aggregate principal amount
of Notes that is less than the aggregate principal amount of Notes that
otherwise was to be purchased by such Person. In such event, the aggregate
principal amount of Notes to be so delivered shall be determined by such
Clearing Agency Participant, and delivery of such lesser aggregate principal
amount of Notes shall constitute good delivery.
(k) The Remarketing Agent is not obligated to purchase any Notes
in the Initial Remarketing or otherwise. Neither the Trustee, the Purchase
Contract Agent, the Company nor the Remarketing Agent shall be obligated in any
case to provide funds to make payment upon tender of Notes for remarketing.
(l) The tender and settlement procedures set forth in this Section
8.01, including provisions for payment by purchasers of Notes in the Initial
Remarketing, shall be subject to modification, notwithstanding any provision to
the contrary set forth herein, to the extent required by the Clearing Agency or
if the book-entry system is no longer available for the Notes at the time of the
Initial Remarketing, to facilitate the tendering and remarketing of Notes in
certificated form. In addition, the Remarketing Agent may, notwithstanding any
provision to the contrary set forth herein, modify the settlement procedures set
forth herein in order to facilitate the settlement process.
(m) Anything herein to the contrary notwithstanding, the Reset
Rate shall in no event exceed the maximum rate permitted by applicable law and,
as provided in the Remarketing Agreement, neither the Remarketing Agent nor the
Reset Agent shall have any obligation to determine whether there is any
limitation under applicable law on the Reset Rate or, if there is any such
limitation, the maximum permissible Reset Rate on the Notes and they shall rely
solely upon written notice from the Company (which the Company agrees to provide
prior to the 10th Business Day before February 17, 2005) as to whether or not
there is any such limitation and, if so, the maximum permissible Reset Rate.
Section 8.02 Secondary Remarketing Procedures
--------------------------------
(a) If a Failed Initial Remarketing has occurred, the Company will
request, not later than seven nor more than 15 calendar days prior to the
Secondary Remarketing Date, that the Clearing Agency notify the Holders of the
Notes of the Secondary Remarketing and of the procedures that must be followed
if a Holder of Notes wishes to exercise such Holder's rights with respect to the
Put Option if there is a Failed Secondary Remarketing.
(b) If a Failed Initial Remarketing has occurred, not later than
5:00 P.M., New York City time, on the second Business Day immediately preceding
the Secondary Remarketing Date, each Holder of the Notes may elect to have Notes
held by such Holder remarketed. Under Section 5.5 of the Purchase Contract
Agreement, Holders of Corporate Units that do not give
24
notice of intention to make a Cash Settlement of their related Purchase
Contracts shall be deemed to have consented to the disposition of the Notes
constituting a component of such Corporate Units. Holders of Notes that are not
a component of Corporate Units shall give notice of their election to have such
Notes remarketed to the Custodial Agent pursuant to the Pledge Agreement. Any
such notice shall be irrevocable after 5:00 P.M., New York City time, on the
second Business Day immediately preceding the Secondary Remarketing Date and may
not be conditioned upon the level at which the Reset Rate is established.
Promptly after 5:30 P.M., New York City time, on such second Business Day, the
Trustee, based on the notices received by it prior to such time (including
notices from the Purchase Contract Agent as to Purchase Contracts for which Cash
Settlement has been elected), shall notify the Company and the Remarketing Agent
of the number of Notes to be tendered for remarketing. Under Section 5.5 of the
Purchase Contract Agreement, the Notes that constitute components of Corporate
Units will be remarketed as provided therein and in this Section 8.02.
(c) If any Holder of Corporate Units does not give a notice of its
intention to make a Cash Settlement or gives a notice of election to tender
Notes as described in Section 8.02(b), the Notes of such Holder shall be deemed
tendered, notwithstanding any failure by such Holder to deliver or properly
deliver such Notes to the Remarketing Agent for purchase.
(d) The right of each Holder to have Notes tendered for purchase
shall be limited to the extent that (i) the Remarketing Agent conducts a
remarketing pursuant to the terms of the Remarketing Agreement, (ii) Notes
tendered have not been called for redemption, (iii) the Remarketing Agent is
able to find a purchaser or purchasers for tendered Notes at a price of not less
than 100% of the principal amount thereof, and (iv) such purchaser or purchasers
deliver the purchase price therefor to the Remarketing Agent as and when
required. Each Holder of Notes that are remarketed in a Successful Secondary
Remarketing agrees that a remarketing fee in an amount set forth in the
Remarketing Agreement shall be deducted from the proceeds of the remarketing.
(e) If a Failed Initial Remarketing has occurred, on the Secondary
Remarketing Date, the Remarketing Agent shall use reasonable efforts to
remarket, at a price equal to approximately 100.5% of the aggregate principal
amount thereof, Notes tendered or deemed tendered for purchase.
(f) If none of the Holders elect or are deemed to have elected to
have Notes held by them remarketed, the Reset Rate shall be the rate determined
by the Reset Agent, subject to the terms of the Remarketing Agreement, as the
rate that would have been established had a remarketing been held on the
Secondary Remarketing Date.
(g) If the Remarketing Agent has determined that it will be able
to remarket all Notes tendered or deemed tendered prior to 4:00 P.M., New York
City time, on the Secondary Remarketing Date, the Reset Agent shall, subject to
the terms of the Remarketing Agreement, determine the Reset Rate.
(h) If, by 4:00 P.M., New York City time, on the Secondary
Remarketing Date, the Remarketing Agent is unable to remarket all Notes tendered
or deemed tendered for purchase or if the Secondary Remarketing shall not have
occurred because a condition precedent
25
to the Secondary Remarketing shall not have been fulfilled, a failed remarketing
("Failed Secondary Remarketing") shall be deemed to have occurred and the
Remarketing Agent shall so advise by telephone the Collateral Agent, the
Company, the Trustee, the Purchase Contract Agent and the Clearing Agency. If
requested by the Collateral Agent, the Purchase Contract Agent, the Trustee or
the Clearing Agency, the Company shall confirm such advice in writing.
(i) By approximately 4:30 P.M., New York City time, on the
Secondary Remarketing Date, provided that there has not been a Failed Secondary
Remarketing, the Remarketing Agent shall advise, by telephone (i) the Collateral
Agent, the Company, the Trustee, the Purchase Contract Agent and the Clearing
Agency of the Reset Rate determined in the Secondary Remarketing and the
aggregate principal amount of Notes sold in the Secondary Remarketing, (ii) each
purchaser (or the Clearing Agency Participant thereof) of the Reset Rate and the
aggregate principal amount of Notes such purchaser is to purchase and (iii) each
purchaser to give instructions to its Clearing Agency Participant to pay the
purchase price on the Purchase Contract Settlement Date in same day funds
against delivery of the Notes purchased through the facilities of the Clearing
Agency.
(j) In accordance with the Clearing Agency's normal procedures, on
the Purchase Contract Settlement Date, the transactions described above with
respect to each Note tendered for purchase and sold in the Secondary Remarketing
shall be executed through the Clearing Agency, and the accounts of the
respective Clearing Agency Participants shall be debited and credited and such
Notes delivered by book entry as necessary to effect purchases and sales of such
Notes. The Clearing Agency shall make payment in accordance with its normal
procedures.
(k) If any Holder selling Notes in the Secondary Remarketing fails
to deliver such Notes, the Clearing Agency Participant of such selling Holder
and of any other Person that was to have purchased Notes in the Secondary
Remarketing may deliver to any such other Person an aggregate principal amount
of Notes that is less than the aggregate principal amount of Notes that
otherwise was to be purchased by such Person. In such event, the aggregate
principal amount of Notes to be so delivered shall be determined by such
Clearing Agency Participant, and delivery of such lesser aggregate principal
amount of Notes shall constitute good delivery.
(l) The Remarketing Agent is not obligated to purchase any Notes
in the Secondary Remarketing or otherwise. Neither the Trustee, the Purchase
Contract Agent, the Company nor the Remarketing Agent shall be obligated in any
case to provide funds to make payment upon tender of Notes for remarketing.
(m) The tender and settlement procedures set in this Section 8.02,
including provisions for payment by purchasers of Notes in the Secondary
Remarketing, shall be subject to modification, notwithstanding any provision to
the contrary set forth herein, to the extent required by the Clearing Agency or
if the book-entry system is no longer available for the Notes at the time of the
Secondary Remarketing, to facilitate the tendering and remarketing of Notes in
certificated form. In addition, the Remarketing Agent may, notwithstanding any
provision to the contrary set forth herein, modify the settlement procedures set
forth herein in order to facilitate the settlement process.
26
(n) Anything herein to the contrary notwithstanding, the Reset
Rate shall in no event exceed the maximum rate permitted by applicable law and,
as provided in the Remarketing Agreement, neither the Remarketing Agent nor the
Reset Agent shall have any obligation to determine whether there is any
limitation under applicable law on the Reset Rate or, if there is any such
limitation, the maximum permissible Reset Rate on the Notes and they shall rely
solely upon written notice from the Company (which the Company agrees to provide
prior to the 10th Business Day before the Purchase Contract Settlement Date) as
to whether or not there is any such limitation and, if so, the maximum
permissible Reset Rate.
ARTICLE NINE
MISCELLANEOUS
Section 9.01 Ratification of Indenture.
-------------------------
The Indenture as supplemented by this Tenth Supplemental Indenture, is
in all respects ratified and confirmed, and this Tenth Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
Section 9.02 Trustee Not Responsible for Recitals.
------------------------------------
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Tenth Supplemental Indenture.
Section 9.03 New York Law to Govern.
----------------------
THIS TENTH SUPPLEMENTAL INDENTURE, EACH NOTE AND EACH COUPON SHALL BE
DEEMED TO BE NEW YORK CONTRACTS, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE (WITHOUT REFERENCE TO PRINCIPLES OF
CONFLICTS OF LAW).
Section 9.04 Separability.
------------
In case any one or more of the provisions contained in this Tenth
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, then, to the extent permitted
by law, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Tenth Supplemental Indenture or of the Notes, but this
Tenth Supplemental Indenture and the Notes shall be construed as if such invalid
or illegal or unenforceable provision had never been contained herein or
therein.
Section 9.05 Counterparts
------------
This Tenth Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
27
Section 9.06 Provisions of Base Indenture Not Applicable
-------------------------------------------
The provisions of Article Eight of the Base Indenture shall not apply
to the Notes.
Section 9.07 Provisions of the Indenture and Notes for the Sole
--------------------------------------------------
Benefit of the Parties and the Holders of the Notes. Nothing in this Tenth
---------------------------------------------------
Supplemental Indenture is intended, or shall be construed, to give to any person
or corporation, other than the parties hereto and the Holders of the Notes
issued under the Indenture and this Tenth Supplemental Indenture, any legal or
equitable right, remedy or claim under or in respect of this Tenth Supplemental
Indenture, or under any covenant, condition or provision herein contained, all
the covenants, conditions and provisions of this Tenth Supplemental Indenture
being intended to be, and being, for the sole and exclusive benefit of the
parties hereto and of the Holders of the Notes issued and to be issued under the
Indenture and this Tenth Supplemental Indenture, and secured thereby. All
covenants, promises and agreements in this Tenth Supplemental Indenture
contained by or on behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
Section 9.08 Provisions Required by Trust Indenture Act of 1939 to
-----------------------------------------------------
Control. If any provision of this Tenth Supplemental Indenture limits,
-------
qualifies or conflicts with a provision which is required to be included in this
Tenth Supplemental Indenture by the Trust Indenture Act of 1939, the required
provision shall control.
Section 9.09 Ranking. The Notes constitute senior indebtedness of
-------
the Company superior in right of payment to the Company's subordinated
indebtedness.
28
IN WITNESS WHEREOF, the parties hereto have caused this Tenth
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized, on the date or dates indicated in the acknowledgments
and as of the day and year first above written.
ALLTEL CORPORATION,
as Issuer
By: _____________________________________
Name:
Title:
Attest:
By: ___________________________________
Name:
Title:
X. X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By: _____________________________________
Name:
Title:
