<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(MARK ONE)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1998
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM __________ TO __________
COMMISSION FILE NUMBER 1-12187
COX
RADIO, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
DELAWARE 58-1620022
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
1400 LAKE HEARN DRIVE, ATLANTA, GEORGIA 30319
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
Registrant's telephone number, including area code: (404) 843-5000
---------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
---------------
Indicate the number of shares outstanding of each of the issuer's
classes of Common Stock, as of the latest practicable date.
There were 8,875,861 shares of Class A Common Stock outstanding as of
July 31, 1998.
There were 19,577,672 shares of Class B Common Stock outstanding as of
July 31, 1998.
<PAGE> 2
COX RADIO, INC.
FORM 10-Q
FOR THE QUARTER ENDED JUNE 30, 1998
TABLE OF CONTENTS
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PAGE
PART I - FINANCIAL INFORMATION ----
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ITEM 1. FINANCIAL STATEMENTS......................................................................3
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS................................................................10
ITEM 3 QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK...............................14
PART II - OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS......................................15
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.........................................................16
SIGNATURES.................................................................................................17
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PART 1 - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
COX RADIO, INC.
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
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JUNE 30, DECEMBER 31,
1998 1997
-------- --------
(THOUSANDS OF DOLLARS)
ASSETS
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Current Assets:
Cash and cash equivalents ................................ $ 7,120 $ 6,218
Accounts receivable, less allowance for doubtful accounts
of $2,139 and $1,875, respectively .................... 56,085 50,680
Prepaid expenses and other current assets ................ 5,210 3,795
-------- --------
Total current assets .................................. 68,415 60,693
Plant and equipment, net ................................... 50,310 46,071
Intangible assets, net ..................................... 578,334 518,926
Amounts due from Cox Enterprises, Inc. ..................... 12,612 3,113
Station investment notes receivable ........................ 18,164 18,220
Other assets ............................................... 7,896 7,617
-------- --------
Total assets .......................................... $735,731 $654,640
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Accounts payable and accrued expenses .................... $ 25,144 $ 21,767
Income taxes payable ..................................... 4,781 3,487
Other current liabilities ................................ 1,983 1,964
-------- --------
Total current liabilities ............................. 31,908 27,218
Notes payable .............................................. 300,375 235,740
Deferred income taxes ...................................... 106,187 104,401
-------- --------
Total liabilities ..................................... 438,470 367,359
-------- --------
Commitments and contingencies (Note 3)
Shareholders' equity:
Class A common stock, $1.00 par value; 70,000,000 shares
authorized and 8,874,361 shares outstanding ........... 8,874 8,831
Class B common stock, $1.00 par value; 45,000,000 shares
authorized and 19,577,672 shares outstanding .......... 19,578 19,578
Additional paid-in capital ............................... 251,454 250,637
Retained earnings ........................................ 17,355 8,235
-------- --------
Total shareholders' equity ............................ 297,261 287,281
-------- --------
Total liabilities and shareholders' equity ............ $735,731 $654,640
======== ========
See notes to consolidated financial statements.
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3
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COX RADIO, INC.
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
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THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
-------------------- ---------------------
1998 1997 1998 1997
-------- -------- --------- --------
(In thousands, except per share data)
NET REVENUES:
<S> <C> <C> <C> <C>
Local .......................................... $ 51,059 $ 39,550 $ 89,604 $ 60,842
National ....................................... 17,117 14,187 29,900 21,301
Other .......................................... 985 612 1,717 1,361
-------- -------- --------- --------
Total revenues ............................... 69,161 54,349 121,221 83,504
COSTS AND EXPENSES:
Operating ...................................... 16,445 13,650 29,539 21,842
Selling, general and administrative............. 28,485 22,394 50,884 33,801
Corporate general and administrative............ 2,057 2,028 3,932 3,450
Depreciation and amortization................... 5,593 5,133 10,954 7,185
-------- -------- --------- --------
OPERATING INCOME .................................. 16,581 11,144 25,912 17,226
OTHER INCOME (EXPENSE):
Interest income ................................... 184 525 211 1,472
Interest expense .................................. (4,034) (3,567) (7,878) (3,571)
Gain on sale of radio station ..................... - - 49,223
Other - net ....................................... (92) (196) (150) (264)
-------- -------- --------- --------
INCOME BEFORE INCOME TAXES ........................ 12,639 7,906 18,095 64,086
Income taxes ...................................... 6,294 3,969 8,975 25,946
-------- -------- --------- --------
NET INCOME ........................................ $ 6,345 $ 3,937 $ 9,120 $ 38,140
======== ======== ========= ========
Basic net income per common share ................. $ .22 $ .14 $ .32 $ 1.35
======== ======== ========= ========
Diluted net income per common share ............... $ .22 $ .14 $ .32 $ 1.34
======== ======== ========= ========
Weighted average basic common share
outstanding ....................................... 28,448 28,335 28,438 28,324
======== ======== ========= ========
Weighted average diluted common share
outstanding ....................................... 28,763 28,414 28,735 28,363
======== ======== ========= ========
</TABLE>
See notes to consolidated financial statements.
4
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COX RADIO, INC.
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(UNAUDITED)
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CLASS A CLASS B
COMMON STOCK COMMON STOCK ADDITIONAL
--------------------------- ------------------ PAID-IN RETAINED
SHARES AMOUNT SHARES AMOUNT CAPITAL EARNINGS TOTAL
------------ ------------ ------- -------- --------- --------- --------
(IN THOUSANDS)
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BALANCE AT DECEMBER 31, 1997 ..... 8,831 $ 8,831 19,578 $ 19,578 $ 250,637 $ 8,235 $287,281
Net income ..................... 9,120 9,120
Issuance of Class A common stock
related to incentive plans .. 43 43 817 860
============ ============ ======= ======== ========= ========= ========
BALANCE AT JUNE 30, 1998 8,874 $ 8,874 19,578 19,578 $ 251,454 $ 17,355 $297,261
============ ============ ======= ======== ========= ========= ========
</TABLE>
See notes to consolidated financial statements.
5
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COX RADIO, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
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SIX MONTHS ENDED
JUNE 30,
---------------------
1998 1997
-------- ---------
(THOUSANDS OF DOLLARS)
CASH FLOWS FROM OPERATING ACTIVITIES:
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Net income ...................................... $ 9,120 $ 38,140
Items not requiring cash:
Depreciation .................................. 2,579 2,205
Amortization .................................. 8,375 4,980
Deferred income taxes ......................... 1,770 22,852
Gain on sale of radio stations ................ - (49,223)
Increase in accounts receivable ................. (5,405) (26)
Increase in accounts payable and accrued
expenses ...................................... 1,488 50
Increase (decrease) in taxes payable ............ 1,295 (5,455)
Other, net ...................................... (2,120) (1,122)
-------- ---------
Net cash provided by operating activities 17,102 12,411
-------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures ............................ (3,893) (4,171)
Acquisitions, net of cash acquired .............. (69,370) (283,517)
Increase in other long-term assets .............. (1,561) (17,546)
Net proceeds from sale of radio stations ........ - 19,741
Other, net ...................................... 15 237
-------- ---------
Net cash used in investing activities .... (74,809) (285,256)
-------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Increase in amounts due to (from) CEI ........... (9,499) 56,915
Net borrowings of debt .......................... 65,375 214,994
Proceeds from stock options exercised ........... 845 -
Decrease in book overdrafts ..................... 1,888 1,891
-------- ---------
Net cash provided by financing activities 58,609 273,800
-------- ---------
Net increase in cash and cash equivalents ....... 902 955
Cash and cash equivalents at beginning of
period ........................................ 6,218 10,595
-------- ---------
Cash and cash equivalents at end of period ...... $ 7,120 $ 11,550
======== =========
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid for interest ........................ $ 8,005 $ 2,430
Cash paid for taxes ........................... $ 5,785 $ 9,985
</TABLE>
See notes to consolidated financial statements.
6
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COX RADIO, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
JUNE 30, 1998
1. BASIS OF PRESENTATION AND OTHER INFORMATION
Cox Radio, Inc. ("Cox Radio or the "Company") is a leading national
radio broadcast company whose business is devoted to acquiring, developing and
operating radio stations located throughout the United States. Cox Enterprises,
Inc. ("CEI") indirectly owns approximately 69% of the Common Stock of Cox Radio.
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnote disclosures required by generally accepted accounting principles for
complete financial statements. In the opinion of management, the financial
statements reflect all adjustments considered necessary for a fair statement of
the results of operations and financial position for the interim periods
presented. All such adjustments are of a normal, recurring nature. These
unaudited interim financial statements should be read in conjunction with the
audited consolidated financial statements for the year ended December 31, 1997
and notes thereto contained in Cox Radio's Annual Report on Form 10-K filed with
the Securities and Exchange Commission (Commission File No. 1-12187).
The results of operations for the six months ended June 30, 1998 are
not necessarily indicative of the results to be expected for the year ending
December 31, 1998 or any interim period.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
In June 1998, Statement of Financial Accounting Standards No. 133
("SFAS No. 133"), "Accounting for Derivative Instruments and Hedging
Activities," was issued. This Statement requires that all derivatives be
recognized in the statement of financial position as either assets or
liabilities and measured at fair value. In addition, all hedging relationships
must be designated, reassessed and documented pursuant to the provisions of SFAS
No. 133. SFAS No. 133 is effective for fiscal years beginning after June 15,
1999. The effect on the financial statements upon adoption of SFAS No. 133 has
not been determined.
3. ACQUISITIONS AND DISPOSITIONS OF BUSINESSES
In January 1998, the Company entered into an agreement to assign its
option to purchase KRIO-FM serving the San Antonio, Texas market for an
aggregate consideration of $.3 million (the "San Antonio Disposition").
In February 1998, the Company entered into an agreement to acquire
WCLR-FM, WZLR-FM and WPTW-AM serving the Dayton, Ohio market for approximately
$6 million (the "Dayton Acquisition"). The Company has been operating these
stations pursuant to an LMA since December 1997. In addition, the Company has
entered into a Station Investment Note Receivable with the seller of such
stations for $6 million. Pending certain regulatory approvals, the Company
anticipates closing the Dayton Acquisition in the second half of 1998.
In February 1998, the Company entered into an agreement to acquire the
assets of WTLN-FM serving the Orlando, Florida market for consideration of $14.5
million. In a related transaction, the Company entered into an agreement to
dispose of the assets of WZKD-AM, also serving the Orlando, Florida market for
$.5 million (the "Orlando Exchange"). Pending certain regulatory approvals, the
Company expects to complete the Orlando Exchange in the second half of 1998 or
the first half of 1999.
In March 1998, the Company acquired KONO-FM and KONO-AM in San Antonio
for $23 million (the "San Antonio Acquisition II").
7
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In May 1998, the Company completed its acquisition of the assets of
WBLI-FM, WBAB-FM, WHFM-FM and WGBB-AM, serving the Nassau-Suffolk, New York
market for consideration of $48 million.
The following unaudited pro forma summary of operations presents the
consolidated results of operations as if all consummated and pending
transactions had occurred at the beginning of the periods presented and does not
purport to be indicative of what would have occurred had these transactions been
made as of those dates or of results which may occur in the future.
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THREE MONTH ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
----------------- -------------------
1998 1997 1998 1997
------- ------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
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Net revenues ............................................. $71,076 $61,629 $125,630 $111,216
Corporate general and administrative expenses ............ 2,057 2,028 3,932 3,926
Depreciation and amortization ............................ 5,785 5,898 11,530 11,248
Operating income ......................................... 16,962 12,634 26,251 19,297
Net income ............................................... 6,294 3,643 8,781 4,911
======= ======= ======== ========
Basic and diluted pro forma net income per common
share..................................................... $ .22 $ .13 $ .31 $ .17
======= ======= ======== ========
Basic pro forma shares outstanding ....................... 28,448 28,335 28,438 28,324
======= ======= ======== ========
Diluted pro forma shares outstanding ..................... 28,763 28,414 28,735 28,363
======= ======= ======== ========
</TABLE>
4. COMMITMENTS AND CONTINGENCIES
On March 7, 1997, Cox Radio entered into a $300 million, five-year,
senior, unsecured revolving credit facility (the "Credit Agreement"). The
interest rate is based on the London Interbank Offered Rate plus a spread
determined by certain leverage ratios. This facility also includes a commitment
fee on the unused portion of the total amount available of .1% to .25% based on
certain leverage ratios.
At June 30, 1998, the Company had approximately $100 million of
outstanding indebtedness under the Credit Agreement and had approximately $200
million available under the Credit Agreement. The interest rate applied to
amounts due under the Credit Agreement was 6.06% at June 30, 1998.
On May 26, 1998, the Company issued and sold an aggregate of $200
million principal amount of notes (the "Original Notes") in an offering exempt
from registration under the Securities Act of 1933, as amended (the "Securities
Act") pursuant to Rule 144A thereunder. As provided in the Registration Rights
Agreement dated as of May 26, 1998 among the Company, its wholly owned
subsidiaries WSB, Inc. and WHIO, Inc. (each a guarantor of the Original Notes),
NationsBanc Montgomery Securities LLC, Chase Securities, Inc., and J.P. Morgan
Securities, Inc., the Company is preparing to commence an offer to exchange the
Original Notes for an aggregate of $200 million principal amount of notes (the
terms and form of which are the same in all material respects as the Original
Notes) to be registered under the Securities Act.
The Company has entered into interest rate swap agreements with certain
lenders providing bank financing. Pursuant to the interest rate swap agreements,
the Company has exchanged its floating rate interest obligations on an aggregate
of $100 million in principal at an average fixed rate of 6.23% per annum for an
average maturity of 6.25 years. The fixing of interest rates for this period
reduces in part the Company's exposure to the uncertainty of floating interest
rates. The differentials paid or received on the interest rate swap agreements
are recognized as adjustments to interest expense. The counterparties to these
interest rate swap agreements are a diverse group of major financial
institutions. The Company is exposed to credit loss in the event of
8
<PAGE> 9
nonperformance by these counterparties. However, the Company does not anticipate
nonperformance by such counterparties, and no material loss would be expected
from their nonperformance. The fair value of the interest rate swap agreements
was not recognized in the consolidated financial statements since they are
accounted for as hedges. $138,000 and $216,000 of interest expense were recorded
on these interest rate swap agreements for the three and six month periods
ending June 30, 1998, respectively. At June 30, 1998 the estimated fair value of
the interest rate swap agreements, based on current market rates, approximated a
net payable of $2.2 million.
5. EARNINGS PER COMMON SHARE AND CAPITAL STRUCTURE
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THREE MONTHS ENDED JUNE 30, SIX MONTHS ENDED JUNE 30,
--------------------------- -------------------------
1998 1997 1998 1997
-------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
NET INCOME ................................................... $ 6,345 $ 3,937 $ 9,120 $ 38,140
======== ======== ======== ========
BASIC EPS
Weighted-average common shares outstanding .................... 28,448 28,335 28,438 28,324
======== ======== ======== ========
Basic net income per common share ............................. $ .22 $ .14 $ .32 $ 1.35
======== ======== ======== ========
DILUTED EPS
Weighted-average common shares outstanding .................... 28,448 28,335 28,438 28,324
Shares issuable on exercise of dilutive options............. 692 641 692 641
Shares assumed to be purchased with proceeds of options..... (377) (562) (395) (602)
-------- -------- -------- --------
Shares applicable to diluted EPS .............................. 28,763 28,414 28,735 28,363
======== ======== ======== ========
Diluted net income per common share ........................... $ .22 $ .14 $ .32 $ 1.34
======== ======== ======== ========
</TABLE>
9
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS OF COX RADIO
The following discussion should be read in conjunction with the
accompanying historical Consolidated Statements of Income for the three and six
month periods ended June 30, 1998 and 1997.
This report contains forward-looking statements that are subject to
risks and uncertainties. Forward-looking statements include the information
regarding future cash requirements of the Company. For such statements, the
Company claims the protection of the safe harbor for forward-looking statements
contained in Section 21E of the Securities Exchange Act of 1934, as amended. The
Company's results could differ materially from those discussed in each
forward-looking statement due to various factors which are outside the Company's
control, including competition for audience share and advertising revenue from
other radio stations, electronic and print media and new media technologies and
governmental regulation of the radio broadcasting industry. For a more detailed
discussion of these factors and others, see the Risk Factors section of the
Company's prospectus filed as part of its Registration Statement on Form S-1
(File No. 333-08737).
GENERAL
Cox Radio is a leading national radio broadcast company whose business
is devoted to acquiring, developing and operating radio stations located
throughout the United States. Cox Enterprises, Inc. ("CEI") indirectly owns
approximately 69% of the Common Stock of Cox Radio.
The performance of a radio station group, such as the Company, is
customarily measured by its ability to generate Broadcast Cash Flow and EBITDA.
Broadcast Cash Flow is defined as operating income plus depreciation and
amortization and corporate general and administrative expenses. EBITDA is
defined as operating income plus depreciation and amortization. "After-tax" cash
flow is defined as net income (loss) before extraordinary items plus
depreciation, amortization and deferred tax expense. Although Broadcast Cash
Flow, EBITDA and after-tax cash flow are not recognized under generally accepted
accounting principles ("GAAP"), they are accepted by the broadcasting industry
as generally recognized measures of performance and are used by analysts who
report publicly on the condition and performance of broadcasting companies. For
the foregoing reasons, the Company believes that these measures will be useful
to investors. However, Broadcast Cash Flow, EBITDA or after-tax cash flow should
not be considered to be an alternative to operating income as determined in
accordance with GAAP, an alternative to cash flows from operating activities (as
a measure of liquidity) or an indicator of the Company's performance under GAAP.
The primary source of the Company's revenues is the sale of local and
national advertising. Historically, approximately 73% and 25% of the Company's
gross revenues have been generated from local and national advertising,
respectively. The Company's most significant station operating expenses are
employees' salaries and benefits, commissions, programming expenses and
advertising and promotional expenditures.
The Company's revenues vary throughout the year. As is typical in the
radio broadcasting industry, the Company's revenues and broadcast cash flows are
typically lowest in the first quarter and higher in the second and fourth
quarters. The Company's operating results in any period may be affected by the
incurrence of advertising and promotional expenses that do not necessarily
produce commensurate revenues until the impact of the advertising and promotion
is realized in future periods.
ACQUISITIONS AND DISPOSITIONS
During the past several years, the Company has actively managed its
portfolio of radio stations through selected acquisitions, dispositions and
swaps, as well as the use of local marketing agreements ("LMA's") and joint
sales agreements ("JSA's"). Specific transactions entered into or consummated by
the Company during the six months ended June 30, 1998 are discussed below.
10
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In January 1998, the Company entered into an agreement to assign its
option to purchase KRIO-FM serving the San Antonio, Texas market for an
aggregate consideration of $.3 million (the "San Antonio Disposition").
In February 1998, the Company entered into an agreement to acquire
WCLR-FM, WZLR-FM and WPTW-AM serving the Dayton, Ohio market for approximately
$6 million (the "Dayton Acquisition"). The Company has been operating these
stations pursuant to an LMA since December 1997. In addition, the Company has
entered into a Station Investment Note Receivable with the seller of such
stations for $6 million. See further discussion at Note 4 to the Company's
Consolidated Financial Statements included elsewhere herein. Pending certain
regulatory approvals, the Company anticipates closing the Dayton Acquisition in
the second half of 1998.
In February 1998, the Company entered into an agreement to acquire the
assets of WTLN-FM serving the Orlando, Florida market for consideration of $14.5
million. In a related transaction, the Company entered into an agreement to
dispose of the assets of WZKD-AM, also serving the Orlando, Florida market for
$.5 million (the "Orlando Exchange"). Pending certain regulatory approvals, the
Company expects to complete the Orlando Exchange in the second half of 1998 or
the first half of 1999.
In March 1998, the Company acquired KONO-FM and KONO-AM in San Antonio
for $23 million (the "San Antonio Acquisition II").
In May 1998, the Company completed its acquisition of the assets of
WBLI-FM, WBAB-FM, WHFM-FM and WGBB-AM, serving the Nassau-Suffolk, New York
market for consideration of $48 million.
RESULTS OF OPERATIONS
Three months ended June 30, 1998 compared to three months ended June 30, 1997
Net Revenues. Net revenues for the second quarter of 1998 increased
$14.8 million to $69.2 million, a 27.3% increase over the second quarter of
1997. This increase was primarily attributable to strong ratings performance in
the Atlanta, Los Angeles and Miami markets as well as the Company's recent
acquisitions. These acquisitions included the August 1997 LMA of WBHJ-FM and
WBHK-FM in Birmingham, the September 1997 acquisition of KISS-FM, KSMG-FM and
KLUP-AM in San Antonio and the May 1998 acquisition of WBAB-FM, WBLI-FM, WHFM-FM
and WGBB-AM in Long Island, New York.
Station Operating Expenses. Station operating expenses increased $8.9
million to $44.9 million, an increase of 24.7% over the second quarter of 1997.
The increase was primarily attributable to the August 1997 LMA of WBHJ-FM and
WBHK-FM in Birmingham, the September 1997 acquisition of KISS-FM, KSMG-FM and
KLUP-AM in San Antonio and the May 1998 acquisition of WBAB-FM, WBLI-FM, WHFM-FM
and WGBB-AM in Long Island, New York. Increases were also due to higher
programming and sales related costs which are driven by ratings and revenues,
respectively.
Broadcast Cash Flow. Broadcast cash flow increased $5.9 million to
$24.2 million, a 32.4% increase over the second quarter of 1997 for the reasons
discussed above.
Corporate General and Administrative Expenses. Corporate general and
administrative expenses for the second quarter totaled $2.1 million as compared
to $2.0 million for the second quarter of 1997 which reflects results of the
Company's efforts to control corporate overhead costs.
Operating Income. Operating income for the second quarter of 1998
increased $5.4 million to $16.6 million, an increase of 48.8% over the second
quarter of 1997 for the reasons discussed above.
11
<PAGE> 12
Net Interest Expense. Net interest expense during the second quarter of
1998 totaled $3.9 million as compared to $3.0 million during the second quarter
of 1997 as a result of borrowings incurred to complete the Company's recent
acquisitions.
Net Income. Net income for the second quarter of 1998 increased $2.4
million to $6.3 million, an increase of 61.2% over the second quarter of 1997
for the reasons discussed above.
Six months ended June 30, 1998 compared to six months ended June 30, 1997
Net Revenues. Net revenues for the first half of 1998 increased $37.7
million to $121.2 million, a 45.2% increase over the first half of 1997. This
increase was primarily attributable to recent acquisitions, the most significant
of which was the New City Acquisition in April 1997. Other recent acquisitions
included the August 1997 LMA of WBHJ-FM and WBHK-FM in Birmingham, the September
1997 acquisition of KISS-FM, KSMG-FM and KLUP-AM in San Antonio and the May 1998
acquisition of WBAB-FM, WBLI-FM, WHFM-FM and WGBB-AM in Long Island, New York
which all contributed to the increase in net revenues for the first half of
1998. Also, substantial increases in net revenues at the stations in Atlanta,
Los Angeles and Miami were realized as a result of strong ratings performance.
Station Operating Expenses. Station operating expenses increased $24.8
million to $80.4 million, an increase of 44.5% over the first half of 1997. This
increase was primarily attributable to recent acquisitions, the most significant
of which was the New City Acquisition in April 1997. Other recent acquisitions
included the August 1997 LMA of WBHJ-FM and WBHK-FM in Birmingham, the September
1997 acquisition of KISS-FM, KSMG-FM and KLUP-AM in San Antonio and the May 1998
acquisition of WBAB-FM, WBLI-FM, WHFM-FM and WGBB-AM in Long Island, New York
which all contributed to increases in station operating expenses. Also,
increases in these expenses were realized due to higher programming and sales
related costs which are driven by ratings and revenues, respectively.
Broadcast Cash Flow. Broadcast cash flow increased $12.9 million to
$40.8 million, a 46.4% increase over the first half of 1997 for the reasons
discussed above.
Corporate General and Administrative Expenses. Corporate general and
administrative expenses for the first half of 1998 totaled $3.9 million as
compared to $3.4 million for the first half of 1997. The increase is primarily
due to higher overhead costs incurred as a result of the significant increase in
number of stations owned and/or operated in 1998.
Operating Income. Operating income for the first half of 1998 increased
$8.7 million to $25.9 million, an increase of 50.4% over the first half of 1997
for the reasons discussed above.
Net Interest Expense. Net interest expense during the first half of
1998 totaled $7.7 million as compared to $2.1 million during the first half of
1997 as a result of borrowings incurred to complete the Company's recent
acquisitions, the most significant of which was the NewCity Acquisition in April
1997.
Net Income. Net income decreased $29.0 million from the first half of
1997 to $9.1 million primarily as a result of the first quarter 1997 after-tax
gain on the sale of WCKG-FM and WYSY-FM (Chicago) of approximately $29.3 million
in addition to the reasons discussed above.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary source of liquidity is cash provided by
operations. Historically, cash requirements have been funded by Cox Radio's
operating activities and through borrowings under the Credit Agreement (as
defined below). For the six months ended June 30, 1998, cash from operations
increased $5.4 million to $17.8 million, primarily attributable to an increase
in net income excluding the gain on WCKG-FM and WYSY-FM (Chicago), an increase
in non-cash charges for depreciation and amortization and the net change in
working capital
12
<PAGE> 13
accounts. In addition, cash requirements historically have been funded on a
temporary basis through intercompany advances from CEI under a revolving credit
facility with CEI (the "CEI Credit Facility"). Borrowings, if any, by the
Company under the CEI Credit Facility would typically be repaid by the Company
within 30 days. Borrowings, if any, under the CEI Credit Facility would accrue
interest at CEI's commercial paper rate plus .40%. CEI continues to perform
day-to-day cash management services for Cox Radio.
On March 7, 1997, Cox Radio entered into a $300 million, five-year,
senior, unsecured revolving credit facility (the "Credit Agreement"). The
interest rate is based on the London Interbank Offered Rate plus a spread
determined by certain leverage ratios. This facility also includes a commitment
fee on the unused portion of the total amount available of .1% to .25% based on
certain leverage ratios.
At June 30, 1998, the Company had approximately $100 million of
outstanding indebtedness under the Credit Agreement and had approximately $200
million available under the Credit Agreement. The interest rate applied to
amounts due under the Credit Agreement was 6.06% at June 30, 1998.
On May 26, 1998, the Company issued and sold an aggregate of $200
million principal amount of notes (the "Original Notes") in an offering exempt
from registration under the Securities Act of 1933, as amended (the "Securities
Act") pursuant to Rule 144A thereunder. As provided in the Registration Rights
Agreement dated as of May 26, 1998 among the Company, its wholly owned
subsidiaries WSB, Inc. and WHIO, Inc. (each a guarantor of the Original Notes),
NationsBanc Montgomery Securities LLC, Chase Securities, Inc., and J.P. Morgan
Securities, Inc., the Company is preparing to commence an offer to exchange the
Original Notes for an aggregate of $200 million principal amount of notes (the
terms and form of which are the same in all material respects as the Original
Notes) to be registered under the Securities Act.
The Company has entered into interest rate swap agreements with certain
lenders providing bank financing. Pursuant to the interest rate swap agreements,
the Company has exchanged its floating rate interest obligations on an aggregate
of $100 million in principal at an average fixed rate of 6.23% per annum for an
average maturity of 6.25 years. The fixing of interest rates for this period
reduces in part the Company's exposure to the uncertainty of floating interest
rates. The differentials paid or received on the interest rate swap agreements
are recognized as adjustments to interest expense. The counterparties to these
interest rate swap agreements are a diverse group of major financial
institutions. The Company is exposed to credit loss in the event of
nonperformance by these counterparties. However, the Company does not anticipate
nonperformance by such counterparties, and no material loss would be expected
from their nonperformance. The fair value of the interest rate swap agreements
was not recognized in the consolidated financial statements since they are
accounted for as hedges. $138,000 and $216,000 of interest expense were recorded
on these interest rate swap agreements for the three and six month periods
ending June 30, 1998, respectively. At June 30, 1998 the estimated fair value of
the interest rate swap agreements, based on current market rates, approximated a
net payable of $2.2 million.
Future cash requirements are expected to include capital expenditures,
principal and interest payments on indebtedness and funds for acquisitions. The
Company expects its operations to generate sufficient cash to meet its capital
expenditures and debt service requirements. Additional cash requirements,
including funds for pending or other acquisitions, will be funded by various
sources, including the proceeds from bank financing and, if or when appropriate,
other issuances of Company securities.
13
<PAGE> 14
OTHER MATTERS
Impact of the Year 2000 Issue - The Company recognizes the importance
of the Year 2000 issue and is taking a proactive approach intended to facilitate
an appropriate transition into the year 2000. The Company has implemented a
project team utilizing both internal and external resources, including those of
majority shareholder, Cox Broadcasting, Inc., to develop its Year 2000
initiative, which may, as necessary, involve upgrading or replacing affected
computer systems, software and equipment with embedded chips, and preparing
contingency and disaster recovery plans.
A Company-wide assessment of systems and operations is underway to
identify any information technology and non-information technology systems
(including equipment with embedded chips) that do not properly recognize dates
after December 31, 1999. The project team is developing a plan to assess,
remediate, test, and, sufficiently in advance of the Year 2000, ascertain that
the systems of the Company that are critical to the Company's operations will
properly recognize such dates. Areas of concern that are being addressed include
possible service interruptions in satellite feeds providing news, weather and
syndicated shows for broadcast and potential failure of equipment with embedded
chips including master clocks, studio equipment, transmission equipment, and
telephone, security and environmental control systems.
The Company will incur capital expenditures and internal staff costs as
well as outside consulting and other expenditures related to this initiative.
Total incremental expenses, including depreciation and amortization of bringing
current systems into compliance, writing off existing non-compliant systems, and
capital replacements have not had a material impact on the Company's financial
condition to date and are not at present, based on known facts, expected to have
a material impact on the Company's financial condition.
The Company has initiated a formal communication program with its
significant vendors to determine the extent to which the Company is vulnerable
to those third parties who fail to remediate their own Year 2000 non-compliance.
Based on the information currently available, the Company is not aware of any
likely third party Year 2000 non-compliance by the Company or its vendors or
customers that will materially affect the Company's business operations;
however, the Company does not control the systems of other companies, and cannot
assure that such systems will be timely converted and, if not converted, would
not have an adverse effect on the Company's business operations. Furthermore, no
assurance can be given at this time that any or all of the Company's systems are
or will be Year 2000 compliant, or that the ultimate costs required to address
the Year 2000 issue or the impact of any failure to achieve substantial Year
2000 compliance by the Company, its vendors or customers will not have a
material adverse effect on the Company's financial condition.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
The Company has entered into interest rate swap agreements with certain
lenders providing bank financing. Pursuant to the interest rate swap agreements,
the Company has exchanged its floating rate interest obligations on an aggregate
of $100 million in principal at an average fixed rate of 6.23% per annum for an
average maturity of 6.25 years. The fixing of interest rates for this period
reduces in part the Company's exposure to the uncertainty of floating interest
rates. The differentials paid or received on the interest rate swap agreements
are recognized as adjustments to interest expense. $138,000 and $216,000 of
interest expense were recorded on these interest rate swap agreements for the
three and six month periods ending June 30, 1998, respectively. At June 30, 1998
the estimated fair value of the interest rate swap agreements, based on current
market rates, approximated a net payable of $2.2 million.
14
<PAGE> 15
PART II - OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company held its Annual Meeting of Stockholders on May 13, 1998.
Two matters were voted upon at the meeting: (a) the election of a Board of
Directors of seven members to serve until the 1998 Annual Meeting or until their
successors are duly elected and qualified; and (b) ratification of the
appointment by the Board of Directors of Deloitte & Touche, LLP, independent
certified public accountants, as the Company's independent auditors for the
fiscal year ending December 31, 1998.
The following directors were elected and they received the votes
indicated:
<TABLE>
<CAPTION>
Nominee Votes in Favor Votes Withheld
------- -------------- --------------
<S> <C> <C>
David E. Easterly 203,654,103 17,400
Ernest D. Fears, Jr. 203,654,503 17,000
Richard A. Ferguson 203,653,403 18,100
Paul M. Hughes 203,654,503 17,000
James C. Kennedy 203,654,103 17,400
Robert F. Neil 203,654,103 17,400
Nicholas D. Trigony 203,653,103 18,400
</TABLE>
Ratification of Deloitte & Touche, LLP, as independent auditors for the
fiscal year ending December 31, 1998, was approved with 203,670,193 votes in
favor, 70 votes opposed to, and 1,240 abstentions.
15
<PAGE> 16
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Listed below are the exhibits which are filed as part of this
Report (according to the number assigned to them in Item 601
of Regulation S-K):
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ ----------------------------------------------------------
<S> <C>
2.1 -- Agreement and Plan of Merger, dated as of July 1,
1996, by and among Cox Radio, Inc., New Cox Radio II, Inc.,
NewCity Communications, Inc. and certain stockholders of
NewCity Communications, Inc. (1)**
2.2 -- Guaranty by Cox Broadcasting, Inc., dated as of July 1,
1996, in favor of NewCity Communications, Inc. (1)
3.1 -- Amended and Restated Certificate of Incorporation of
Cox Radio, Inc. (1)
3.2 -- Amended and Restated Bylaws of Cox Radio, Inc. (1)
4.1 -- Indenture between NewCity Communications, Inc. and
Shawmut Bank Connecticut, National Association, as Trustee,
dated as of November 2, 1993, related to the 11 3/8% Notes
due 2003 of NewCity Communications, Inc. (1)**
4.2 -- First Supplemental Indenture between NewCity Communications,
Inc. and Shawmut Bank Connecticut, National Association, as
Trustee, dated as of September 16, 1994, relating to the
11 3/8% Notes due 2003 of NewCity Communications, Inc. (1)
4.3 -- Specimen of Class A Common Stock Certificate. (1)
4.4 -- Indenture between Cox Radio, Inc. and The Bank of New
York, as trustee, dated as of May 26, 1998
4.5 -- Form of 6.250% Senior Notes due 2003
4.6 -- Form of 6.375% Senior Notes due 2005
10.1 -- Credit Agreement, dated as of March 7, 1997, by and among
Cox Radio, Inc., Texas Commerce Bank National Association,
Nationsbank of Texas, N.A. and Citibank, N.A., individually
and as agents, and the other banks signatory thereto. (2)**
10.2 -- CEI Credit Facility. (1)
10.3 -- Cox Radio, Inc. Long-Term Incentive Plan. (1)
10.4 -- Cox Radio, Inc. Employee Stock Purchase Plan. (1)
10.5 -- Cox Radio, Inc. Restricted Stock Plan for Non-Employee
Directors (1)
10.6 -- Tax Allocation and Indemnification Agreement, dated as
of September 30, 1996, by and between Cox Enterprises, Inc. and
Cox Radio, Inc. (2)
11 -- Statement Re: Computation of Per Share Earnings
27.1 -- Financial Data Schedule (for SEC use only)
</TABLE>
- ----------
(1) Incorporated by reference to Cox Radio's Registration Statement on Form
S-1 (Commission File No. 333-08737).
(2) Incorporated by reference to Cox Radio's Annual Report on Form 10-K for
the period ended December 31, 1996 (Commission File No. 1-12187).
** Schedules and Exhibits intentionally omitted.
16
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
COX RADIO, INC.
August 11, 1998 /s/ Maritza C. Pichon
-----------------------------
Maritza C. Pichon
Chief Financial Officer
(Principal Financial Officer and
duly authorized officer)
17
<PAGE> 1
===============================================================================
COX RADIO, INC., Issuer
and
THE GUARANTORS PARTY HERETO, Guarantors
to
THE BANK OF NEW YORK, Trustee
---------------
INDENTURE
---------------
Dated as of May 26, 1998
Debt Securities
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
---------
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I Definitions and Other Provisions of General Application...................1
Section 1.1. Definitions..........................................................1
Act..................................................................2
Additional Amounts...................................................2
Affiliate............................................................2
Asset Acquisition....................................................2
Asset Disposition....................................................3
Authenticating Agent.................................................3
Authorized Newspaper.................................................3
Authorized Officer...................................................3
Bearer Security......................................................3
Board of Directors...................................................3
Board Resolution.....................................................3
Business Day.........................................................3
Capitalized Lease....................................................3
Capital Stock........................................................4
Closing Date.........................................................4
Commission...........................................................4
Company..............................................................4
Company Request and Company Order....................................4
Conversion Event.....................................................4
Corporate Trust Office...............................................4
Corporation..........................................................5
Coupon...............................................................5
Credit...............................................................5
Currency.............................................................5
Currency Agreement...................................................5
CUSIP number.........................................................5
Default..............................................................5
Defaulted Interest...................................................5
Dollars or $.........................................................5
ECU..................................................................5
European Monetary System.............................................6
European Union.......................................................6
Event of Default.....................................................6
Foreign Currency.....................................................6
GAAP.................................................................6
Government Obligations...............................................6
Guarantee or Guarantees..............................................6
Guarantor or Guarantors..............................................7
Guarantor's Board of Directors.......................................7
Guarantor's Board Resolution.........................................7
Guarantor's Officers' Certificate....................................7
Guarantor............................................................7
Holder...............................................................7
Indebtedness.........................................................7
Indenture............................................................8
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Independent Public Accountants.......................................8
Indexed Security.....................................................8
Initial Guarantor or Initial Guarantors..............................8
Interest.............................................................8
Interest Payment Date................................................9
Interest Rate Agreement..............................................9
Judgment Currency....................................................9
Leverage Ratio.......................................................9
Lien................................................................10
Maturity............................................................10
New York Banking Day................................................10
Office or Agency....................................................10
Officers' Certificate...............................................10
Opinion of Counsel..................................................10
Original Issue Discount Security....................................10
Outstanding.........................................................10
Paying Agent........................................................12
Permitted Liens.....................................................12
Person..............................................................13
Place of Payment....................................................13
Predecessor Security................................................13
Principal Property..................................................14
Redemption Date.....................................................14
Redemption Price....................................................14
Registered Security.................................................14
Regular Record Date.................................................14
Required Currency...................................................14
Responsible Officer.................................................14
Restricted Group....................................................14
Restricted Property.................................................15
Restricted Subsidiary...............................................15
Security or Securities..............................................15
Security Register...................................................15
Special Record Date.................................................15
Stated Maturity.....................................................15
Subsequent Guarantor................................................15
Subsidiary..........................................................15
Trustee.............................................................15
United States.......................................................16
United States Alien.................................................16
Unrestricted Subsidiary.............................................16
U.S. Depository or Depository.......................................16
Vice President......................................................16
Section 1.2. Compliance Certificates and Opinions................................16
Section 1.3. Form of Documents Delivered to Trustee..............................17
Section 1.4. Acts of Holders.....................................................18
Section 1.5. Notices, etc., to Trustee, the Company and the Guarantors...........20
Section 1.6. Notice to Holders of Securities; Waiver.............................20
Section 1.7. Language of Notices.................................................21
Section 1.8. Effect of Headings and Table of Contents............................21
Section 1.9. Successors and Assigns..............................................21
Section 1.10. Separability Clause.................................................22
Section 1.11. Benefits of Indenture...............................................22
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
Section 1.12. Governing Law.......................................................22
Section 1.13. Legal Holidays......................................................22
Section 1.14. Counterparts........................................................22
Section 1.15. Judgment Currency...................................................22
Section 1.16. No Security Interest Created........................................23
Section 1.17. Limitation on Individual Liability..................................23
ARTICLE II Security Forms..........................................................24
Section 2.1. Forms Generally.....................................................24
Section 2.2. Form of Trustee's Certificate of Authentication.....................24
Section 2.3. Securities in Global Form...........................................25
ARTICLE III The Securities.........................................................26
Section 3.1. Amount Unlimited; Issuable in Series................................26
Section 3.2. Currency; Denominations.............................................30
Section 3.3. Execution, Authentication, Delivery and Dating......................30
Section 3.4. Temporary Securities................................................32
Section 3.5. Registration, Transfer and Exchange.................................33
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities....................36
Section 3.7. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved...................37
Section 3.8. Persons Deemed Owners...............................................39
Section 3.9. Cancellation........................................................40
Section 3.10. Computation of Interest.............................................40
Section 3.11. Exempt Offerings....................................................40
Section 3.12. CUSIP Numbers.......................................................42
ARTICLE IV Satisfaction and Discharge..............................................43
Section 4.1. Satisfaction and Discharge of Indenture.............................43
Section 4.2. Defeasance and Covenant Defeasance..................................44
Section 4.3. Application of Trust Money..........................................48
ARTICLE V Remedies.................................................................49
Section 5.1. Events of Default...................................................49
Section 5.2. Acceleration of Maturity; Rescission and Annulment..................51
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.....52
Section 5.4. Trustee May File Proofs of Claim....................................53
Section 5.5. Trustee May Enforce Claims without Possession of Securities
or Coupons..........................................................54
Section 5.6. Application of Money Collected......................................54
Section 5.7. Limitations on Suits................................................55
Section 5.8. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts............................55
Section 5.9. Restoration of Rights and Remedies..................................56
Section 5.10. Rights and Remedies Cumulative......................................56
Section 5.11. Delay or Omission Not Waiver........................................56
Section 5.12. Control by Holders of Securities....................................56
Section 5.13. Waiver of Past Defaults.............................................57
Section 5.14. Waiver of Usury, Stay or Extension Laws.............................57
Section 5.15. Undertaking for Costs...............................................57
ARTICLE VI The Trustee.............................................................58
Section 6.1. Certain Duties and Responsibilities.................................58
Section 6.2. Notice of Defaults..................................................60
</TABLE>
iii
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<TABLE>
<S> <C>
Section 6.3. Not Responsible for Recitals or Issuance of Securities..............60
Section 6.4. May Hold Securities.................................................61
Section 6.5. Money Held in Trust.................................................61
Section 6.6. Compensation and Reimbursement......................................61
Section 6.7. Corporate Trustee Required; Eligibility.............................62
Section 6.8. Disqualification; Conflicting Interests.............................62
Section 6.9. Resignation and Removal; Appointment of Successor...................62
Section 6.10. Acceptance of Appointment by Successor..............................64
Section 6.11. Merger, Conversion, Consolidation or Succession to Business.........66
Section 6.12. Preferential Collection of Claims against the Company...............66
Section 6.13. Appointment of Authenticating Agent.................................66
ARTICLE VII Holders' Lists and Reports by Trustee, the Guarantors and Company......69
Section 7.1. Company and the Guarantors to Furnish Trustee Names and
Addresses of Holders................................................69
Section 7.2. Preservation of Information; Communications to Holders..............69
Section 7.3. Reports by Trustee..................................................69
Section 7.4. Reports by Company and the Guarantors...............................70
ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease..................71
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms................71
Section 8.2. Successor Person Substituted for Company............................72
Section 8.3. Guarantors May Consolidate, Etc., Only on Certain Terms.............72
Section 8.4. Successor Person Substituted for A Guarantor........................73
ARTICLE IX Supplemental Indentures.................................................73
Section 9.1. Supplemental Indentures Without Consent of Holders..................73
Section 9.2. Supplemental Indentures with Consent of Holders.....................74
Section 9.3. Execution of Supplemental Indentures................................76
Section 9.4. Effect of Supplemental Indentures...................................76
Section 9.5. Reference in Securities to Supplemental Indentures..................76
Section 9.6. Notice of Supplemental Indenture....................................77
ARTICLE X Covenants................................................................77
Section 10.1. Payment of Principal, any Premium, Interest and
Additional Amounts..................................................77
Section 10.2. Maintenance of Office or Agency.....................................77
Section 10.3. Money for Securities Payments to Be Held in Trust...................79
Section 10.4. Additional Amounts..................................................80
Section 10.5. Limitation on Liens.................................................81
Section 10.6. Limitation on Indebtedness of Restricted Subsidiaries...............82
Section 10.7. Designation of Subsidiaries.........................................82
Section 10.8. Corporate Existence.................................................82
Section 10.9. Waiver of Certain Covenants.........................................82
Section 10.10. Company Statement as to Compliance; Notice of Certain Defaults......82
Section 10.11. Guarantor's Statement as to Compliance; Notice of
Certain Defaults....................................................82
Section 10.12. Subsequent Guarantor................................................82
Section 10.13. Calculation of Original Issue Discount..............................82
ARTICLE XI Redemption of Securities................................................83
Section 11.1. Applicability of Article............................................83
Section 11.2. Election to Redeem; Notice to Trustee...............................83
Section 11.3. Selection by Trustee of Securities to be Redeemed...................83
Section 11.4. Notice of Redemption................................................84
Section 11.5. Deposit of Redemption Price.........................................85
</TABLE>
iv
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<TABLE>
<S> <C>
Section 11.6. Securities Payable on Redemption Date...............................85
Section 11.7. Securities Redeemed in Part.........................................86
ARTICLE XII Sinking Funds..........................................................87
Section 12.1. Applicability of Article............................................87
Section 12.2. Satisfaction of Sinking Fund Payments with Securities...............87
Section 12.3. Redemption of Securities for Sinking Fund...........................88
ARTICLE XIII Repayment at the Option of Holders....................................88
Section 13.1. Applicability of Article............................................88
ARTICLE XIV Securities in Foreign Currencies.......................................89
Section 14.1. Applicability of Article............................................89
ARTICLE XV Meetings of Holders of Securities.......................................89
Section 15.1. Purposes for Which Meetings May Be Called...........................89
Section 15.2. Call, Notice and Place of Meetings..................................89
Section 15.3. Persons Entitled to Vote at Meetings................................90
Section 15.4. Quorum; Action......................................................90
Section 15.5. Determination of Voting Rights; Conduct and Adjournment
of Meetings.........................................................91
Section 15.6. Counting Votes and Recording Action of Meetings.....................92
ARTICLE XVI Guarantee..............................................................92
Section 16.1. Unconditional Guarantee.............................................92
Section 16.2. Operation of Guarantees.............................................94
</TABLE>
v
<PAGE> 7
INDENTURE, dated as of May 26, 1998 (the "Indenture"), between COX
RADIO, INC., a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter called the "Company"), having its principal
executive office located at 1400 Lake Hearn Drive, NE, Atlanta, Georgia 30319,
THE BANK OF NEW YORK, a New York banking corporation, as trustee (hereinafter
called the "Trustee"), having its Corporate Trust Office located at 101 Barclay
Street, New York, New York 10286 and WSB, INC. and WHIO, INC., each a
corporation duly organized and existing under the laws of the State of
Delaware, as guarantors (each, an "Initial Guarantor", and collectively, the
"Initial Guarantors").
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 senior unsecured
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear interest at fixed or
floating rates, to mature or be subject to earlier redemption or repayment at
such time or times, to be issued in one or more series and to have such other
provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
In addition, each Initial Guarantor has duly authorized, and each
Subsequent Guarantor will duly authorize, the execution and delivery of this
Indenture insofar as it relates to the Guarantees provided for herein. All
things necessary to make this Indenture a valid agreement of such Guarantor, 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 covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof and any Coupons, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided in or pursuant to this Indenture or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
<PAGE> 8
(2) 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;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America and, except as
otherwise herein expressly provided, the terms "generally accepted
accounting principles" or "GAAP" with respect to any computation
required or permitted hereunder shall mean such accounting principles
as are generally accepted in the United States of America at the date
or time of such computation;
(4) 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; and
(5) the word "or" is always used inclusively (for example,
the phrase "A or B" means "A or B or both", not "either A or B but not
both").
Certain terms used principally in certain Articles hereof are
defined in those Articles.
"Act", when used with respect to any Holders, has the meaning
specified in Section 1.4.
"Additional Amounts" means any additional amounts which are
required hereby or by any Security, under circumstances specified
herein or therein, to be paid by the Company in respect of certain
taxes, assessments or other governmental charges imposed on Holders
specified therein and which are owing to such Holders.
"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 the meanings correlative to the
foregoing.
"Asset Acquisition" means (i) an investment by the Company or
any of its Restricted Subsidiaries in any other Person where such
Person shall become a Restricted Subsidiary or shall be merged into or
consolidated with the Company or any of its Restricted Subsidiaries or
(ii) an acquisition by the Company or any of its Restricted
Subsidiaries of the property and assets of any Person other than the
Company or any of its Restricted Subsidiaries that constitute
substantially all of a division or line of business of such Person.
"Asset Disposition" means the sale or other disposition by
the Company or any of its Restricted Subsidiaries (other than to the
Company or another Restricted Subsidiary)
2
<PAGE> 9
of (i) all or substantially all of the Capital Stock of any Restricted
Subsidiary or (ii) all or substantially all of the assets that
constitute a division or line of business of the Company or any of its
Restricted Subsidiaries.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.13 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official
language of the place of publication or in the English language,
customarily published on each day that is a Business Day in the place
of publication, whether or not published on Saturdays, Sundays or
holidays in the place of publication, and of general circulation in
each place in connection with which the term is used or in the
financial community of each such place. Where successive publications
are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the
same city meeting the foregoing requirements and in each case on any
day that is a Business Day in the place of publication.
"Authorized Officer" means, when used with respect to a
Corporation, the Chairman of the Board of Directors, a Vice Chairman,
the President, any Vice President, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of such
Corporation.
"Bearer Security" means any Security in the form established
pursuant to Section 2.1 which is payable to bearer.
"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 one or more resolutions,
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 such certification is delivered to the
Trustee.
"Business Day", with respect to any Place of Payment or other
location, means, unless otherwise specified with respect to any
Securities pursuant to Section 3.1, any day other than a Saturday,
Sunday or other day on which banking institutions in such Place of
Payment or other location are authorized or obligated by law,
regulation or executive order to close.
"Capitalized Lease" means, as applied to any Person, any
lease of any property (whether real, personal or mixed) of which the
discounted present value of the rental obligations of such Person as
lessee, in conformity with GAAP, is required to be capitalized on the
balance sheet of such Person.
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<PAGE> 10
"Capital Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) in equity of such Person
whether outstanding on the Closing Date or issued thereafter.
"Closing Date" means the date on which the first series of
Securities is originally issued under the Indenture.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, as amended, or, if at any time after the execution of
this Indenture 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.
"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, and any
other obligor upon the Securities.
"Company Request" and "Company Order" mean, respectively, a
written request or order, as the case may be, signed in the name of
the Company by the Chairman of the Board, a Vice Chairman, the
President, or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a
Foreign Currency both by the government of the country or the
confederation which issued such Foreign Currency and for the
settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii)
the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within the
European Union or (iii) any currency unit or composite currency other
than the ECU for the purposes for which it was established unless
otherwise specified with respect to any Securities pursuant to Section
3.1, all payments of principal of and premium, if any, and interest on
any Debt Security that are payable in a Foreign Currency that ceases
to be used by the government or confederation of issuance shall be
made in U.S. dollars.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate
trust business shall be principally administered, which office as of
the date hereof is located at 101 Barclay Street, New York, New York
10286.
"Corporation" includes corporations and limited liability
companies and, except for purposes of Article VIII, associations,
companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
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<PAGE> 11
"Credit Agreement" or "Credit Agreements" means (i) the $300
million, five-year, senior, unsecured revolving credit facility, dated
as of March 7, 1997, with certain guarantors and banks, including
Chase Bank of Texas, N.A. (formerly Texas Commerce Bank National
Association), as Administrative Agent, NationsBank of Texas, N.A., as
Syndication Agent and Citibank, N.A., as Documentation Agent or (ii)
any future senior unsecured credit facility between the Company and
one or more third party lenders.
"Currency", with respect to any payment, deposit or other
transfer in respect of the principal of or any premium or interest on
or any Additional Amounts with respect to any Security, means Dollars
or the Foreign Currency, as the case may be, in which such payment,
deposit or other transfer is required to be made by or pursuant to the
terms hereof or such Security and, with respect to any other payment,
deposit or transfer pursuant to or contemplated by the terms hereof or
such Security, means Dollars.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement.
"CUSIP number" means the alphanumeric designation assigned to
a Security by Standard & Poor's Corporation, CUSIP Service Bureau.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Dollars" or "$" means a dollar or other equivalent unit of
legal tender for payment of public or private debts in the United
States of America.
"ECU" means the European Currency Units as defined and
revised from time to time by the Council of the European Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of
the European Community.
"European Union" means the European Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 5.1.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU, issued by
the government of one or more countries other than the United States
of America or by any recognized confederation or association of such
governments.
"GAAP" means such accounting principles as are generally
accepted in the United States of America as of the date or time of any
computation required hereunder.
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<PAGE> 12
"Government Obligations" means securities which are (i)
direct obligations of the United States of America or the other
government or governments in the confederation which issued the
Foreign Currency in which the principal of or any premium or interest
on such Security or any Additional Amounts in respect thereof shall be
payable, in each case where the payment or payments thereunder are
supported by the full faith and credit of such government or
governments or (ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of
America or such other government or governments, in each case where
the timely payment or payments thereunder are unconditionally
guaranteed as a full faith and credit obligation by the United States
of America or such other government or governments, and which, in the
case of (i) or (ii), are not callable or redeemable at the option of
the issuer or issuers thereof, and shall also include a depository
receipt issued by a bank or trust company as custodian with respect to
any such Government Obligation or a specific payment of interest on or
principal of or other amount with respect to any such Government
Obligation held by such custodian for the account of the holder of a
depository receipt, 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 depository receipt from any amount
received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of or other amount
with respect to the Government Obligation evidenced by such depository
receipt.
"Guarantee" or "Guarantees" means each full and unconditional
guarantee of the payment of the principal of or any premium or
interest on or any Additional Amounts with respect to the Securities
by a Guarantor, as more fully set forth in Article XVI.
"Guarantor" or "Guarantors" means the Initial Guarantor and
any and all Subsequent Guarantors.
"Guarantor's Board of Directors" means the Board of Directors
of a Guarantor or any committee of that Board duly authorized to act
generally or in any particular respect for such Guarantor hereunder.
"Guarantor's Board Resolution" means a copy of one or more
resolutions, certified by the Secretary or an Assistant Secretary of a
Guarantor to have been duly adopted by such Guarantor's Board of
Directors and to be in full force and effect on the date such
certification is delivered to the Trustee.
"Guarantor's Officers' Certificate" means a certificate
signed by the Chairman of the Board, a Vice Chairman, the President,
the Chief Financial Officer or a Vice President and by the Treasurer,
an Assistant Treasurer, the Comptroller, the Assistant Comptroller,
the Secretary or an Assistant Secretary, of a Guarantor, and is
delivered to the Trustee. One of the officers signing a Guarantor's
Officers' Certificate given pursuant to Section 10.11 shall be the
principal executive, financial or accounting officer of such
Guarantor.
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<PAGE> 13
"Guarantor Request" and "Guarantor Order" mean, respectively,
a written request or order, as the case may be, signed in the name of
a Guarantor by the Chairman of the Board, a Vice Chairman, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of such Guarantor,
and delivered to the Trustee.
"Holder", in the case of any Registered Security, means the
Person in whose name such Security is registered in the Security
Register and, in the case of any Bearer Security, means the bearer
thereof and, in the case of any Coupon, means the bearer thereof.
"Indebtedness" means, without duplication, with respect to
any Person: (i) any indebtedness of such Person (A) for borrowed money
or (B) evidenced by a note, debenture or similar instrument (including
a purchase money obligation) given in connection with the acquisition
of any property or assets, including securities; (ii) any guarantee by
such Person of any indebtedness of others described in the preceding
clause (i); and (iii) any amendment, extension, renewal or refunding
of any such indebtedness or guarantee. The term "Indebtedness"
excludes (i) any indebtedness of the Company or any Restricted
Subsidiary to the Company or another Restricted Subsidiary, (ii) any
guarantee by the Company or any Restricted Subsidiary of indebtedness
of the Company or another Restricted Subsidiary, (iii) trade accounts
payable, (iv) money borrowed and set aside at the time of the
incurrence of any Indebtedness in order to prefund the payment of the
interest on such Indebtedness so long as such money is held to secure
the payment of such interest, (v) liabilities for federal, state,
local or other taxes and (vi) letters of credit, performance bonds and
similar obligations issued in favor of governmental authorities as a
term of any governmental franchise, license, permit or authorization
held by such Person or any of its Subsidiaries. The amount of
Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described
above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the
obligation. The amount of Indebtedness issued with original issue
discount is the face amount of such Indebtedness less the remaining
unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP.
"Indenture" means this instrument 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 and,
with respect to any Security, by the terms and provisions of such
Security and any Coupon appertaining thereto established pursuant to
Section 3.1 (as such terms and provisions may be amended pursuant to
the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm
of accountants that, with respect to the Company and the Guarantors
and any other obligor under the Securities, the Coupons or the
Guarantees, are independent public accountants within the meaning of
the Securities Act of 1933, as amended, and the rules and regulations
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<PAGE> 14
promulgated by the Commission thereunder, who may be the independent
public accountants regularly retained by the Company or who may be
other independent public accountants. Such accountants or firm shall
be entitled to rely upon any Opinion of Counsel as to the
interpretation of any legal matters relating to this Indenture or
certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which
provide that the principal amount thereof payable at Stated Maturity
may be more or less than the principal face amount thereof at original
issuance.
"Initial Guarantor" or "Initial Guarantors" means each Person
named as an "Initial Guarantor" 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 "Initial
Guarantor" and "Initial Guarantors" shall mean such successor Person.
"Interest", with respect to any Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity and, when used with respect to a
Security which provides for the payment of Additional Amounts pursuant
to Section 10.4 or liquidated damages pursuant to the terms of such
Security, includes such Additional Amounts or other amounts.
"Interest Payment Date", with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option
agreement, interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedge agreement, option
or future contract or other similar agreement or arrangement.
"Judgment Currency" has the meaning specified in Section 1.15.
"Leverage Ratio" with respect to the Restricted Group means,
as of the date of and after giving effect to any designation of an
Unrestricted Subsidiary as a Restricted Subsidiary or any designation
of a Restricted Subsidiary as an Unrestricted Subsidiary, in each case
in accordance with Section 10.7, the ratio of (i) the aggregate
outstanding principal amount of all Indebtedness of the Restricted
Group as of such date to (ii) the product of four times the Restricted
Group Cash Flow for the most recent full fiscal quarter for which
financial information is available on such date; provided that, in
making the foregoing calculation, (A) pro forma effect shall be given
to any Indebtedness to be incurred or repaid on the date of incurrence
of any Indebtedness (the "Transaction Date"); (B) pro forma effect
shall be given to Asset Dispositions and Asset Acquisitions (including
giving pro forma effect to the application of proceeds of any Asset
Disposition) that occur from the beginning of the fiscal quarter
through the Transaction Date (the "Reference Period"), as if they had
occurred and such proceeds had been applied on the first day of such
Reference Period and, in the case of any Asset
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<PAGE> 15
Acquisition, giving pro forma effect to any cost reductions the
Company anticipates if the Company delivers to the Trustee an
officer's certificate executed by the Chief Financial Officer of the
Company certifying to and describing and quantifying with reasonable
specificity the cost reductions expected to be attained within the
first year after such Asset Acquisition; and (C) pro forma effect
shall be given to asset dispositions and asset acquisitions (including
giving pro forma effect to the application of proceeds of any asset
disposition) that have been made by any Person that has become a
Restricted Subsidiary or has been merged with or into the Company or
any Restricted Subsidiary during such Reference Period and that would
have constituted Asset Dispositions or Asset Acquisitions had such
transactions occurred when such Person was a Restricted Subsidiary as
if such asset dispositions or asset acquisitions were Asset
Dispositions or Asset Acquisitions that occurred on the first day of
such Reference Period; provided that to the extent that clause (B) or
(C) of this sentence requires that pro forma effect be given to an
Asset Acquisition or Asset Disposition, such pro forma calculation
shall be based upon the fiscal quarter immediately preceding the
Transaction Date of the Person, or division or line of business of the
Person, that is acquired or disposed of for which financial
information is available.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional
sale or other title retention agreement or lease in the nature
thereof).
"Maturity", 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, notice of
redemption or repurchase, notice of option to elect repayment or
otherwise, and includes the Redemption Date.
"New York Banking Day" has the meaning specified in Section
1.15.
"Office" or "Agency", with respect to any Securities, means
an office or agency of the Company or a Guarantor maintained or
designated in a Place of Payment for such Securities pursuant to
Section 10.2 or any other office or agency of the Company or a
Guarantor maintained or designated for such Securities pursuant to
Section 10.2 or, to the extent designated or required by Section 10.2
in lieu of such office or agency, the Corporate Trust Office of the
Trustee.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman, the President, the Chief
Financial Officer or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary, of the Company, and delivered to
the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 10.10 shall be the principal executive,
financial or accounting officer of the Company.
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<PAGE> 16
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Company or a Guarantor or
other counsel who shall be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means a Security issued
pursuant to this Indenture which provides for declaration of an amount
less than the principal face amount thereof to be due and payable upon
acceleration pursuant to Section 5.2.
"Outstanding", when used with respect to any Securities,
means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) any such Security theretofore cancelled by the
Trustee or the Security Registrar or delivered to the Trustee
or the Security Registrar for cancellation;
(ii) any such Security for whose payment at the
Maturity thereof money in the necessary amount has been
theretofore deposited pursuant hereto (other than pursuant to
Section 4.2) with the Trustee or any Paying Agent (other than
the Company or a Guarantor) in trust or set aside and
segregated in trust by the Company or a Guarantor (if the
Company shall act as its own, or authorize a Guarantor to act
as, Paying Agent) for the Holders of such Securities and any
Coupons appertaining thereto; 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) any such Security with respect to which the
Company has effected defeasance pursuant to the terms hereof,
except to the extent provided in Section 4.2;
(iv) any such Security which has been paid pursuant
to Section 3.6 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, unless there shall have been presented to the
Trustee proof satisfactory to it that such Security is held
by a bona fide purchaser in whose hands such Security is a
valid obligation of the Company; and
(v) any such Security converted or exchanged as
contemplated by this Indenture into other securities, if the
terms of such Security provide for such conversion or
exchange pursuant to Section 3.1;
provided, however, that in determining whether the Holders of
the requisite principal amount of Outstanding Securities have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder or are present at a meeting of
Holders of Securities for quorum purposes, (i) the principal
amount of an Original Issue Discount Security that may be
counted in making such determination and that shall be deemed
to be Outstanding for such purposes shall
10
<PAGE> 17
be equal to the amount of the principal thereof that pursuant
to the terms of such Original Issue Discount Security would
be declared (or shall have been declared to be) due and
payable upon a declaration of acceleration thereof pursuant
to Section 5.2 at the time of such determination, and (ii)
the principal amount of any Indexed Security that may be
counted in making such determination and that shall be deemed
Outstanding for such purposes shall be equal to the principal
face amount of such Indexed Security at original issuance,
unless otherwise provided in or pursuant to this Indenture,
and (iii) the principal amount of a Security denominated in a
Foreign Currency shall be the Dollar equivalent, determined
on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent on the date of
original issuance of such Security of the amount determined
as provided in (i) above) of such Security, and (iv)
Securities owned by the Company or a Guarantor or any other
obligor upon the Securities or any Affiliate of the Company
or a Guarantor or such other obligor, shall be disregarded
and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making any such
determination or relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded.
Securities so owned which shall have been pledged in good
faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee (A) the
pledgee's right so to act with respect to such Securities and
(B) that the pledgee is not the Company or a Guarantor or any
other obligor upon the Securities or any Coupons appertaining
thereto or an Affiliate of the Company or a Guarantor or such
other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, or any premium or interest on, or any Additional
Amounts with respect to, any Security or any Coupon on behalf of the
Company.
"Permitted Liens" means: (i) Liens for taxes, assessments,
governmental charges or claims that are not yet delinquent or are
being contested in good faith by appropriate legal proceedings
promptly instituted and diligently conducted and for which a reserve
or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made; (ii) statutory and common
law Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen or other similar Liens arising the
ordinary course of business and with respect to amounts not yet
delinquent or being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which
a reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made; (iii) Liens incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of
social security; (iv) Liens incurred or deposits made to secure the
performance of tenders, bids, leases, statutory or regulatory
obligations (including obligations under franchise agreements),
bankers' acceptances, surety and appeal bonds, government contracts,
performance and return-of-
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<PAGE> 18
money bonds and other obligations of a similar nature incurred in the
ordinary course of business (exclusive of obligations for the payment
of borrowed money); (v) easements, rights-of-way, municipal and zoning
ordinances and similar charges, encumbrances, title defects or other
irregularities that do not materially interfere with the ordinary
course of business of the Company or any of its Restricted
Subsidiaries; (vi) Liens upon real or personal property acquired after
the Closing Date; provided that (a) such Lien is created solely for
the purpose of securing Indebtedness incurred, in accordance with
Section 10.6 to finance the cost (including the cost of design,
development, acquisition, installation, integration, improvement or
construction) of the item of property or assets subject thereto and
such Lien is created prior to, at the time of or within six months
after the later of the acquisition, the completion of construction or
the commencement of full operation of such property, (b) the principal
amount of the Indebtedness secured by such Lien does not exceed 100%
of such cost and (c) any such Lien shall not extend to or cover any
property or assets other than such item of property or assets and any
improvements on such item; (vii) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (viii) Liens on
property of, or on shares of Capital Stock or Indebtedness of, any
Person existing at the time such Person becomes, or becomes a part of,
any Restricted Subsidiary; provided that such Liens do not extend to
or cover any property or assets of the Company or any Restricted
Subsidiary other than the property or assets acquired; (ix) Liens in
favor of the Company or any Restricted Subsidiary; (x) Liens arising
from the rendering of a final judgment or order against the Company or
any Restricted Subsidiary that does not give rise to an Event of
Default; (xi) Liens securing reimbursement obligations with respect to
letters of credit that encumber documents and other property relating
to such letters of credit and the products and proceeds thereof; (xii)
Liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the
importation of goods; (xiii) Liens encumbering customary initial
deposits and margin deposits, and other Liens that are within the
general parameters customary in the industry and incurred in the
ordinary course of business, in each case, securing Indebtedness under
Interest Rate Agreements and Currency Agreements and forward
contracts, options, future contracts, futures options or similar
agreements or arrangements designed solely to protect the Company or
any of its Restricted Subsidiaries from fluctuations in interest
rates, currencies or the price of commodities; (xiv) Liens arising out
of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Company or any
of its Restricted Subsidiaries in the ordinary course of business in
accordance with industry practice; (xv) Liens resulting from deposits
made in connection with any proposed Asset Acquisition; provided that
such deposit does not exceed 10% of the estimated purchase price for
such Asset Acquisition; and (xvi) Liens on or sales of receivables,
including related intangible assets and proceeds thereof where, in the
good faith determination of the Board of Directors of the Company, the
Company has received the fair market value of such receivables.
"Person" means any individual, Corporation, partnership,
joint venture, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
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<PAGE> 19
"Place of Payment", with respect to any Security, means the
place or places where the principal of, or any premium or interest on,
or any Additional Amounts with respect to, such Security are payable
as provided in or pursuant to this Indenture or such Security.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same Indebtedness
as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost
or stolen Security or any Security to which a mutilated, destroyed,
lost or stolen Coupon appertains shall be deemed to evidence the same
Indebtedness as the mutilated, destroyed, lost or stolen Security or
the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Principal Property" means, as of any date of determination,
any property or assets owned by any Restricted Subsidiary other than
(i) any such property which, in the good faith opinion of the Board of
Directors of the Company, is not of material importance to the
business conducted by the Company and its Restricted Subsidiaries
taken as a whole and (ii) any shares of any class of stock or any
other security of any Unrestricted Subsidiary.
"Redemption Date", with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture or such Security.
"Redemption Price", with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed
as determined by or pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant
to Section 2.1 which is registered in a Security Register.
"Regular Record Date" for the interest payable on any
Registered Security on any Interest Payment Date therefor means the
date, if any, specified in or pursuant to this Indenture or such
Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 1.15.
"Responsible Officer" means any vice president, any assistant
vice president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, or any trust officer or any other authorized
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 or her
knowledge of and familiarity with the particular subject.
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<PAGE> 20
"Restricted Group" means, as of any date of determination,
the Company and the Restricted Subsidiaries as of such date.
"Restricted Property" means, as of any date of determination,
any Principal Property and any shares of stock of a Restricted
Subsidiary owned by the Company or a Restricted Subsidiary.
"Restricted Subsidiary" means each Subsidiary of the Company
other than the Unrestricted Subsidiaries.
"Security" or "Securities" means any note or notes, bond or
bonds, debenture or debentures, or any other evidences of
Indebtedness, as the case may be, authenticated and delivered under
this Indenture; provided, however, that, if at any time there is more
than one Person acting as Trustee under this Indenture, "Securities",
with respect to any such Person, shall mean Securities authenticated
and delivered under this Indenture, exclusive, however, of Securities
of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted
Interest on any Registered Security means a date fixed by the Trustee
pursuant to Section 3.7.
"Stated Maturity", with respect to any Security or any
installment of principal thereof or interest thereon or any Additional
Amounts with respect thereto, means the date established by or
pursuant to this Indenture or such Security as the fixed date on which
the principal of such Security or such installment of principal or
interest is, or such Additional Amounts are, due and payable,
including pursuant to any mandatory redemption provision (but
excluding any provision providing for the repurchase of such Security
at the option of a holder thereof upon the happening of any
contingency unless such contingency shall have occurred).
"Subsequent Guarantor" means any Subsidiary that after the
date hereof guarantees indebtedness of the Company under a Credit
Agreement.
"Subsidiary" means, in respect of any Person, any
corporation, association, partnership or other business entity of
which more than 50% of the total voting power of shares of capital
stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person, (ii)
such Person and one or more Subsidiaries of such Person or (iii) one
or more Subsidiaries of such Person.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall
have become such with respect to one or more series of Securities
pursuant to the applicable provisions of this Indenture, and
thereafter
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"Trustee" shall mean each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such
Person, "Trustee" shall mean each such Person and as used with respect
to the Securities of any series shall mean the Trustee with respect to
the Securities of such series.
"United States", except as otherwise provided in or pursuant
to this Indenture or any Security, means the United States of America
(including the states thereof and the District of Columbia), its
territories and possessions and other areas subject to its
jurisdiction.
"United States Alien", except as otherwise provided in or
pursuant to this Indenture or any Security, means any Person who, for
United States Federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a
foreign estate or trust, or a foreign partnership one or more of the
members of which is, for United States Federal income tax purposes, a
foreign corporation, a non-resident alien individual or a non-resident
alien fiduciary of a foreign estate or trust.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that has been designated as an Unrestricted Subsidiary as
permitted by Section 10.7 and not thereafter redesignated as a
Restricted Subsidiary as permitted thereby and (ii) each Subsidiary of
any Unrestricted Subsidiary.
"U.S. Depository" or "Depository" means, with respect to any
Security issuable or issued in the form of one or more global
Securities, the Person designated as U.S. Depository or Depository by
the Company in or pursuant to this Indenture, which Person must be, to
the extent required by applicable law or regulation, a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and,
if so provided with respect to any Security, any successor to such
Person. If at any time there is more than one such Person, "U.S.
Depository" or "Depository" shall mean, with respect to any
Securities, the qualifying entity which has been appointed with
respect to such Securities.
"Vice President", when used with respect to the Company, a
Guarantor or the Trustee, means any vice president (but shall not
include any assistant vice president), whether or not designated by a
number or a word or words added before or after the title "Vice
President".
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company or a Guarantor to the Trustee to take any
action under any provision of this Indenture, the Company or such Guarantor, as
the case may be, shall furnish to the Trustee an Officers' Certificate or a
Guarantor's Officers' Certificate, as the case may be, stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent, if any, have
been complied with, except that in the case of any such
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application or request as to which the furnishing of such documents or any of
them is specifically required by any provision of this Indenture relating to
such particular application or request, no additional certificate or opinion
need be furnished.
Each such certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant 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
condition or covenant 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 1.3. 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 or a Guarantor
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, 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 or
such Guarantor, as the case may be, stating that the information with respect
to such factual matters is in the possession of the Company or such Guarantor,
as the case may be, 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 or any Security, they may, but need not, be
consolidated and form one instrument.
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Section 1.4. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by or pursuant to this Indenture to be given 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 an agent
duly appointed in writing. If, but only if, Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article XV, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or
record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company and the Guarantors. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of execution
of any such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to the provisions of Article VI) conclusive in
favor of the Trustee, the Company and a Guarantor and any agent of the Trustee,
the Company or such Guarantor, if made in the manner provided in this Section.
The record of any meeting of Holders of Securities shall be proved in the
manner provided in Section 15.6.
Without limiting the generality of this Section 1.4, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S.
Depository that is a Holder of a global Security, may make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture to be made, given or taken by Holders, and a U.S. Depository that is
a Holder of a global Security may provide its proxy or proxies to the
beneficial owners of interests in any such global Security through such U.S.
Depository's standing instructions and customary practices.
The Company shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global Security
held by a U.S. Depository entitled under the procedures of such U.S. Depository
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture to be made, given or taken by
Holders. If such a record date is fixed, the Holders on such record date or
their duly appointed proxy or proxies, and only such Persons, shall be entitled
to make, give or take such request, demand, authorization, direction, notice,
consent, waiver or other Act, whether or not such Holders remain Holders after
such record date. No such request, demand, authorization, direction, notice,
consent, waiver or other Act shall be valid or effective if made, given or
taken more than 90 days after such record date.
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The fact and date of the execution by any Person of any such
instrument or writing referred to in this Section 1.4 may be proved in any
reasonable manner; and the Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section.
The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Company and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee, the Company
and the Guarantors may assume that such ownership of any Bearer Security
continues until (i) another certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced, or (ii) such Bearer
Security is produced to the Trustee by some other Person, or (iii) such Bearer
Security is surrendered in exchange for a Registered Security, or (iv) such
Bearer Security is no longer Outstanding. The ownership, principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of the commencement and the date of the
termination of holding the same may also be proved in any other manner which
the Company and the Trustee deem sufficient.
If the Company or a Guarantor shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company or such Guarantor, as the case may
be, may at its option (but is not obligated to), by Board Resolution or
Guarantor's Board Resolution, as the case may be, fix in advance a record date
for the determination of Holders of Registered Securities entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of Registered Securities of record at
the close of business on such record date shall be deemed to be Holders for the
purpose of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
of Registered Securities shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six
months after the record date.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act by 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
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thereof in respect of anything done or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, the Company or a Guarantor in reliance
thereon, whether or not notation of such Act is made upon such Security.
Section 1.5. Notices, etc., to Trustee, the Company and the
Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver
or other 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, a Guarantor 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, or
(2) the Company or a Guarantor 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 or such Guarantor, as the
case may be, 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
or such Guarantor, as the case may be.
Section 1.6. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper in
The City of New York and, if such Securities are then listed on any
stock exchange outside the United States, in an Authorized Newspaper
in such city as the Company shall advise the Trustee that such stock
exchange so requires, on a Business Day at least twice, the first such
publication to be not earlier than the earliest date and the second
such publication not later than the latest date prescribed for the
giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of
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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.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearers Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of any notice mailed
to Holders of Registered Securities as provided above.
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 of Securities 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.
Section 1.7. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company or a Guarantor, as the case may
be, so elects, any published notice may be in an official language of the
country of publication.
Section 1.8. 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 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not. All covenants and
agreements in this Indenture by the Guarantors shall bind their respective
successors and assigns, whether so expressed or not.
Section 1.10. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon
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.
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Section 1.11. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their successors
hereunder, and the Holders of Securities or Coupons, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 1.12. Governing Law.
THIS INDENTURE, THE SECURITIES, THE GUARANTEES AND ANY COUPONS SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO AGREEMENTS MADE OR INSTRUMENTS ENTERED INTO AND, IN EACH
CASE, PERFORMED IN SAID STATE.
Section 1.13. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or
exchangeable, shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture, any Security or any
Coupon other than a provision in any Security or Coupon that specifically
states that such provision shall apply in lieu hereof) payment need not be made
at such Place of Payment on such date, and such Securities need not be
converted or exchanged on such date but such payment may be made, and such
Securities may be converted or exchanged, on the next succeeding day that is a
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or at the Stated Maturity or Maturity or on such
last day for conversion or exchange, and no interest shall accrue on the amount
payable on such date or at such time for the period from and after such
Interest Payment Date, Stated Maturity, Maturity or last day for conversion or
exchange, as the case may be, to such next succeeding Business Day.
Section 1.14. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 1.15. Judgment Currency.
Each of the Company and the Guarantors agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of, or premium or interest, if any, on, or Additional
Amounts with respect to, the Securities of any series or the Guarantees (the
"Required Currency") into a currency in which a judgment will be rendered (the
"Judgment Currency"), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the requisite amount of the Required Currency with the
Judgment Currency on the New York Banking Day preceding the day on which a
final unappealable judgment is given and (b) its obligations under this
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Indenture to make payments in the Required Currency (i) shall not be discharged
or satisfied by any tender, or any recovery pursuant to any judgment (whether
or not entered in accordance with clause (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or obligated by law, regulation or
executive order to be closed.
Section 1.16. No Security Interest Created.
Subject to the provisions of Section 10.5, nothing in this Indenture
or in any Securities, express or implied, shall be construed to constitute a
security interest under the Uniform Commercial Code or similar legislation, as
now or hereafter enacted and in effect in any jurisdiction where property of
the Company or its Subsidiaries is or may be located.
Section 1.17. Limitation on Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security or Guarantee, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Company or any Guarantor, either directly or through the Company
or a Guarantor, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
shareholders, officers or directors, as such, of the Company or any Guarantor ,
or any of them, because of the creation of the indebtedness hereby authorized,
or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any Security or Guarantee or implied therefrom; and that
any and all such personal liability of every name and nature, either at common
law or in equity or by constitution or statute, of, and any and all such rights
and claims against, every such incorporator, shareholder, officer or director,
as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any Security or Guarantee or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issuance of such Security or Guarantee.
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Section 1.18. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
ARTICLE II
SECURITY FORMS
Section 2.1. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the
form established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
or pursuant to this Indenture or any indenture supplemental hereto and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Security or Coupon as evidenced by their execution of
such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 2.2. Form of Trustee's Certificate of Authentication.
Subject to Section 6.13, the Trustee's certificate 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.
Dated: THE BANK OF NEW YORK,
as Trustee
By______________________________________
Authorized Signatory
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Section 2.3. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered pursuant to Section 3.3 or 3.4 with respect
thereto. Subject to the provisions of Section 3.3 and, if applicable, Section
3.4, the Trustee shall make available for delivery and redelivery, in each case
at the Company's expense, any Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in
the applicable Company Order. If a Company Order pursuant to Section 3.3 or 3.4
has been, or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing but need not be
accompanied by or contained in an Officers' Certificate and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.7, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts with
respect to, any Security in temporary or permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company or the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a global Security (i) in the case of a
global Security in registered form, the Holder of such global Security in
registered form, or (ii) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 3.1.
ARTICLE III
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and made available for delivery under this Indenture is
unlimited.
The Securities may be issued in one or more series. With respect to
Securities to be authenticated and delivered hereunder, there shall be
established in or pursuant to a Board
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Resolution and set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto:
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and made available
for delivery under this Indenture (except for Securities authenticated
and made available for delivery upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of such series
pursuant to Section 3.4, 3.5, 3.6, 9.5 or 11.7, upon repayment in part
of any Registered Security of such series pursuant to Article XIII,
upon surrender in part of any Registered Security for conversion into
or exchange for other securities pursuant to its terms, or pursuant to
or as contemplated by the terms of such Securities);
(3) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the Bearer Securities are to be
issuable with Coupons, without Coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities and
the terms, if any, upon which Bearer Securities may be exchanged for
Registered Securities and vice versa;
(4) if any of such Securities are to be issuable in global
form, when any of such Securities are to be issuable in global form
and (i) whether such Securities are to be issued in temporary or
permanent global form or both, (ii) whether beneficial owners of
interests in any such global Security may exchange such interests for
Securities of the same series and of like tenor and of any authorized
form and denomination, and the circumstances under which any such
exchanges may occur, if other than in the manner specified in Section
3.5, and (iii) the name of the Depository or the U.S. Depository, as
the case may be, with respect to any such global Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer
Security or global Security shall be dated (if other than the date of
original issuance of the first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest
Payment Date therefor prior to the exchange, if any, of such temporary
Bearer Security for definitive Securities shall be paid to any
clearing organization with respect to the portion of such temporary
Bearer Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
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(7) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the principal
of such Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate
or rates are to be determined, the date or dates, if any, from which
such interest shall accrue or the method or methods, if any, by which
such date or dates are to be determined, the Interest Payment Dates,
if any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any
Interest Payment Date, whether and under what circumstances Additional
Amounts with respect to such Securities or any of them shall be
payable, the notice, if any, to Holders regarding the determination of
interest on a floating rate Security and the manner of giving such
notice, and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan,
The City of New York, the place or places where the principal of, any
premium and interest on or any Additional Amounts with respect to such
Securities shall be payable, any of such Securities that are
Registered Securities may be surrendered for registration of transfer
or exchange, any of such Securities may be surrendered for conversion
or exchange and notices or demands to or upon the Company or any
Guarantor in respect of such Securities, the Guarantee and this
Indenture may be served, the extent to which, or the manner in which,
any interest payment or Additional Amounts with respect to a global
Security on an Interest Payment Date will be paid and the manner in
which any principal of or premium, if any, on any global Security will
be paid;
(10) whether any of such Securities are to be redeemable at
the option of the Company and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities may be redeemed,
in whole or in part, at the option of the Company;
(11) whether the Company is obligated to redeem or purchase
any of such Securities pursuant to any sinking fund or analogous
provision or at the option of any Holder thereof and, if so, the date
or dates on which, the period or periods within which, the price or
prices at which and the other terms and conditions upon which such
Securities shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation, and any provisions for the
remarketing of such Securities so redeemed or purchased;
(12) the denominations in which any of such Securities that
are Registered Securities shall be issuable if other than
denominations of $1,000 and any integral multiple thereof, and the
denominations in which any of such Securities that are Bearer
Securities shall be issuable if other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible
into and/or exchangeable for other securities, and if so, the terms
and conditions upon which such
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Securities will be so convertible or exchangeable, and any deletions
from or modifications or additions to this Indenture to permit or to
facilitate the issuance of such convertible or exchangeable Securities
or the administration thereof;
(14) if other than the principal amount thereof, the portion
of the principal amount of any of such Securities that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.2 or the method by which such portion is to be
determined;
(15) if other than Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities shall be
payable;
(16) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or
otherwise, in Dollars or in a Foreign Currency other than that in
which such Securities are stated to be payable, the date or dates on
which, the period or periods within which, and the other terms and
conditions upon which, such election may be made, and the time and
manner of determining the exchange rate between the Currency in which
such Securities are stated to be payable and the Currency in which
such Securities or any of them are to be paid pursuant to such
election, and any deletions from or modifications of or additions to
the terms of this Indenture to provide for or to facilitate the
issuance of Securities denominated or payable, at the election of the
Company or a Holder thereof or otherwise, in a Foreign Currency;
(17) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to such
Securities may be determined with reference to an index, formula or
other method or methods (which index, formula or method or methods may
be based, without limitation, on one or more Currencies, commodities,
equity securities, equity indices or other indices), and, if so, the
terms and conditions upon which and the manner in which such amounts
shall be determined and paid or payable;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company or the Guarantors with
respect to any of such Securities or Guarantees, whether or not such
Events of Default or covenants are consistent with the Events of
Default or covenants set forth herein;
(19) whether either or both of Section 4.2(2) relating to
defeasance or Section 4.2(3) relating to covenant defeasance shall not
be applicable to the Securities of such series, or any covenants in
addition to those specified in Section 4.2(3) relating to the
Securities of such series which shall be subject to covenant of
defeasance, and any deletions from, or modifications or additions to,
the provisions of Article IV in respect of the Securities of such
series;
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(20) whether any of such Securities are to be issuable upon
the exercise of warrants, and the time, manner and place for such
Securities to be authenticated and made available for delivery;
(21) if any of such Securities are to be issuable in global
form and are to be issuable in definitive form (whether upon original
issue or upon exchange of a temporary Security) only upon receipt of
certain certificates or other documents or satisfaction of other
conditions, then the form and terms of such certificates, documents or
conditions;
(22) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to such
Securities;
(23) whether the provisions of Section 3.11 are applicable to
such Securities; and
(24) any other terms of such Securities and any other
deletions from or modifications or additions to this Indenture in
respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest
thereon, or method of determining the rate of interest, if any, Maturity, and
the date from which interest, if any, shall accrue and except as may otherwise
be provided by the Company in or pursuant to the Board Resolution and set forth
in the Officers' Certificate or in any indenture or indentures supplemental
hereto pertaining to such series of Securities. The terms of the Securities of
any series may provide, without limitation, that the Securities shall be
authenticated and made available for delivery by the Trustee on original issue
from time to time upon written order of persons designated in the Officers'
Certificate or supplemental indenture and that such persons are authorized to
determine, consistent with such Officers' Certificate or any applicable
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such Officers' Certificate or supplemental
indenture. All Securities of any one series need not be issued at the same time
and, unless otherwise so provided, a series may be reopened for issuances of
additional Securities of such series or to establish additional terms of such
series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
Section 3.2. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Registered Securities denominated in
Dollars shall be issuable in registered form without Coupons in denominations
of $1,000 and any integral multiple thereof, and Bearer Securities denominated
in Dollars shall be
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issuable in the denomination of $5,000. Securities not denominated in Dollars
shall be issuable in such denominations as are established with respect to such
Securities in or pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Vice
President or a Treasurer under its corporate seal reproduced thereon and
attested by its Secretary or one of its Assistant Secretaries. Coupons shall be
executed on behalf of the Company by the Treasurer or any Assistant Treasurer
of the Company. The signature of any of these officers on the Securities or any
Coupons appertaining thereto may be manual or facsimile.
Securities and any Coupons appertaining thereto 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 and Coupons or did not hold such offices at the
date of original issuance of such Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for
authentication and, provided that the Board Resolution and Officers'
Certificate or supplemental indenture or indentures with respect to such
Securities referred to in Section 3.1 and a Company Order for the
authentication and delivery of such Securities have been delivered to the
Trustee, the Trustee in accordance with the Company Order and subject to the
provisions hereof and of such Securities shall authenticate and make available
for delivery such Securities. In authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation to such
Securities and any Coupons appertaining thereto, the Trustee shall be entitled
to receive, and (subject to the provisions of Article VI) shall be fully
protected in relying upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and
Coupons, if any, have been established in conformity with the
provisions of this Indenture;
(b) all conditions precedent to the authentication and
delivery of such Securities and Coupons, if any, appertaining thereto
have been complied with and that such Securities and Coupons, when
completed by appropriate insertions, executed under the Company's
corporate seal and attested by duly authorized officers of the
Company, delivered by duly authorized officers of the Company to the
Trustee for authentication pursuant to this Indenture, and
authenticated and made available for delivery by the Trustee and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legally valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as enforcement thereof
may be subject to or limited by bankruptcy, insolvency,
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reorganization, moratorium, arrangement, fraudulent conveyance,
fraudulent transfer or other similar laws relating to or affecting
creditors' rights generally, and subject to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and will entitle the Holders thereof to the benefits
of this Indenture, including the Guarantees; such Opinion of Counsel
need express no opinion as to the availability of equitable remedies;
and
(c) all laws and requirements in respect of the execution and
delivery by the Company of such Securities and Coupons, if any, have
been complied with; and
(2) an Officers' Certificate and a Guarantor's Officers'
Certificate stating that all conditions precedent to the execution,
authentication and delivery of such Securities and Coupons, if any,
appertaining thereto have been complied with and that, to the best
knowledge of the Persons executing such certificate, no event which
is, or after notice or lapse of time would become, an Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before
the time of issuance of the first Security of such series. After any such first
delivery, any separate written request by an Authorized Officer of the Company
that the Trustee authenticate and make available for delivery Securities of
such series for original issue will be deemed to be a certification by the
Company that all conditions precedent provided for in this Indenture relating
to authentication and delivery of such Securities continue to have been
complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any 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 or if the Trustee,
being advised by counsel, determines that such action may not lawfully be
taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any Bearer Security in global form
shall be dated as of the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto 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 in Section 2.2 or 6.13 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its
authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and made available for delivery hereunder. Except as permitted by Section 3.6
or 3.7, the Trustee shall not authenticate and make available for delivery any
Bearer Security unless all Coupons appertaining thereto then matured have been
detached and cancelled.
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Section 3.4. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and make available for delivery, in the manner provided in Section
3.3, temporary Securities in lieu thereof 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, in registered form or, if authorized in or pursuant
to this Indenture, in bearer form with one or more Coupons or without Coupons
and with such appropriate insertions, omissions, substitutions and other
variations as the officers of the Company executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company shall cause definitive Securities to be prepared
without unreasonable delay. After the preparation of definitive Securities of
the same series and containing terms and provisions that are identical to those
of any temporary Securities, such temporary Securities shall be exchangeable
for such definitive Securities upon surrender of such temporary Securities at
an Office or Agency for such Securities, without charge to any Holder thereof.
Upon surrender for cancellation of any one or more temporary Securities
(accompanied by any unmatured Coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and make available for delivery in
exchange therefor a like principal amount of definitive Securities of
authorized denominations of the same series and containing identical terms and
provisions; provided, however, that no definitive Bearer Security, except as
provided in or pursuant to this Indenture, shall be delivered in exchange for a
temporary Registered Security; and provided, further, that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in or pursuant to this Indenture.
Unless otherwise provided in or pursuant to this Indenture with respect to a
temporary global Security, 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.
Section 3.5. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment
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by the Company. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Company shall
execute, and the Trustee shall authenticate and make available for delivery, in
the name of the designated transferee or transferees, one or more new
Registered Securities of the same series denominated as authorized in or
pursuant to this Indenture, of a like aggregate principal amount bearing a
number not contemporaneously outstanding and containing identical terms and
provisions.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Registered Securities which
the Holder making the exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of
such series may be exchanged for Registered Securities of such series
containing identical terms, denominated as authorized in or pursuant to this
Indenture and in the same aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any Office or Agency for such series, with
all unmatured Coupons and all matured Coupons in default thereto appertaining.
If the Holder of a Bearer Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company and the Trustee in an amount equal to the face amount
of such missing Coupon or Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Company and the Trustee if there is furnished to
them such security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such Bearer Security
shall surrender to any Paying Agent any such missing Coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise
provided in Section 10.2, interest represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an Office or Agency for
such series located outside the United States. Notwithstanding the foregoing,
in case a Bearer Security of any series is surrendered at any such Office or
Agency for such series in exchange for a Registered Security of such series and
like tenor after the close of business at such Office or Agency on (i) any
Regular Record Date and before the opening of business at such Office or Agency
on the next succeeding Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such Office or Agency on the related date
for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the Coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be (or, if such Coupon is so surrendered with such
Bearer Security,
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such Coupon shall be returned to the Person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, shall not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such
Bearer Security, but shall be payable only to the Holder of such Coupon when
due in accordance with the provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to
Securities of any series, at the option of the Holder, Registered Securities of
such series may be exchanged for Bearer Securities upon such terms and
conditions as may be provided in or pursuant to this Indenture with respect to
such series.
Whenever any Securities are surrendered for exchange as contemplated
by the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as depository and a successor depository is
not appointed by the Company within 90 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such global Security shall be so exchangeable,
or (iii) an Event of Default has occurred and is continuing with respect to the
related Securities. If the beneficial owners of interests in a global Security
are entitled to exchange such interests for definitive Securities as the result
of an event described in clause (i), (ii) or (iii) of the preceding sentence,
then without unnecessary delay but in any event not later than the earliest
date on which such interests may be so exchanged, the Company shall deliver to
the Trustee definitive Securities in such form and denominations as are
required by or pursuant to this Indenture, and of the same series, containing
identical terms and in aggregate principal amount equal to the principal amount
of such global Security, executed by the Company. On or after the earliest date
on which such interests may be so exchanged, such global Security shall be
surrendered from time to time by the U.S. Depository or such other Depository
as shall be specified in the Company Order with respect thereto, and in
accordance with instructions given to the Trustee and the U.S. Depository or
such other Depository, as the case may be (which instructions shall be in
writing but need not be contained in or accompanied by an Officers' Certificate
or be accompanied by an Opinion of Counsel), as shall be specified in the
Company Order with respect thereto to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or in part, for definitive Securities
as described above without charge. The Trustee shall authenticate and make
available for delivery, in exchange for each portion of such surrendered global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged, which (unless such Securities are not
issuable both as Bearer Securities and as Registered Securities, in which case
the definitive Securities exchanged for the global Security shall be issuable
only in the form in which the Securities are issuable, as provided in or
pursuant to this Indenture) shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be
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specified by the beneficial owner thereof, but subject to the satisfaction of
any certification or other requirements to the issuance of Bearer Securities;
provided, however, that no such exchanges may occur during a period beginning
at the opening of business 15 days before any selection of Securities of the
same series to be redeemed and ending on the relevant Redemption Date; and
provided, further, that (unless otherwise provided in or pursuant to this
Indenture) no Bearer Security delivered in exchange for a portion of a global
Security shall be mailed or otherwise delivered to any location in the United
States. Promptly following any such exchange in part, such global Security
shall be returned by the Trustee to such Depository or the U.S. Depository, as
the case may be, or such other Depository or U.S. Depository referred to above
in accordance with the instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of a global Security
after the close of business at the Office or Agency for such Security where
such exchange occurs on or after (i) any Regular Record Date for such Security
and before the opening of business at such Office or Agency on the next
succeeding Interest Payment Date, or (ii) any Special Record Date for such
Security and before the opening of business at such Office or Agency on the
related proposed date for payment of interest or Defaulted Interest, as the
case may be, interest shall not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but shall be payable on such Interest Payment Date or proposed date
for payment, as the case may be, only to the Person to whom interest in respect
of such portion of such global Security shall be payable in accordance with the
provisions of this Indenture.
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 entitling the Holders thereof to the same benefits under this
Indenture and the Guarantees as the Securities surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security 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, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge and any other
expenses (including fees and expenses of the Trustee) that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.5 or 11.7 not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or
exchange any Securities during a period beginning at the opening of business 15
days before the day of the selection for redemption of Securities of like tenor
and the same series under Section 11.3 and ending at the close of business on
the day of such selection, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except in
the case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected
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for redemption except, to the extent provided with respect to such Bearer
Security, that such Bearer Security may be exchanged for a Registered Security
of like tenor and the same series, provided that such Registered Security shall
be immediately surrendered for redemption with written instruction for payment
consistent with the provisions of this Indenture or (iv) to issue, register the
transfer of or exchange any Security which, in accordance with its terms, has
been surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 3.6, the Company shall execute and the Trustee shall authenticate
and make available for delivery in exchange therefor a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons appertaining thereto
corresponding to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
Coupon, and (ii) 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 or Coupon has been
acquired by a bona fide purchaser, the Company shall execute and, upon the
Company's request the Trustee shall authenticate and make available for
delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Security or in exchange for the Security to which a destroyed, lost or
stolen Coupon appertains with all appurtenant Coupons not destroyed, lost or
stolen, a new Security of the same series containing identical terms and of
like principal amount and bearing a number not contemporaneously outstanding,
with Coupons appertaining thereto corresponding to the Coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 3.6, in case
any mutilated, destroyed, lost or stolen Security or Coupon 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 or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 10.2, be payable only at an Office or Agency for such Securities
located outside the United States and, unless otherwise provided in or pursuant
to this Indenture, any interest on Bearer Securities and any Additional Amounts
with respect to such interest shall be payable only upon presentation and
surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section 3.6, 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.
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Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section 3.6 in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Company, whether or
not the destroyed, lost or stolen Security and Coupons appertaining thereto or
the destroyed, lost or stolen Coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture and the
Guarantees equally and proportionately with any and all other Securities of
such series and any Coupons, if any, duly issued hereunder.
The provisions of this Section 3.6, as amended or supplemented
pursuant to this Indenture with respect to particular Securities or generally,
shall be 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 or Coupons.
Section 3.7. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
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 (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed by the Company in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on such Registered Security,
the Special Record Date therefor 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 on or prior to the date
of the proposed payment, such money when so deposited to be held in
trust for the benefit of the Person entitled to such Defaulted
Interest as in this Clause provided. The Special Record Date for the
payment of such Defaulted Interest 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 notification to the Trustee of the
proposed payment. The Trustee shall, in the name and at the expense of
the Company, cause notice of the
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proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to the Holder
of such Registered Security (or a Predecessor Security thereof) at his
address as it appears in the Security Register not less than 10 days
prior to such Special Record Date. The Trustee may, if so directed by
the Company, in the name and at the expense of the Company, cause a
similar notice to be published at least once in an Authorized
Newspaper of general circulation in the Borough of Manhattan, The City
of New York, but such publication shall not be a condition precedent
to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Person in whose name such Registered Security (or
a Predecessor Security thereof) shall be registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security 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 payment shall be deemed practicable by the
Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to an account maintained by the payee with a bank located in the
United States.
Subject to the foregoing provisions of this Section and Section 3.5,
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.
In the case of any Registered Security of any series that is
convertible into or exchangeable for other securities, which Registered
Security is converted or exchanged after any Regular Record Date and on or
prior to the next succeeding Interest Payment Date (other than any Registered
Security with respect to which the Stated Maturity is prior to such Interest
Payment Date), interest with respect to which the Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion or exchange, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name
that Registered Security (or one or more predecessor Registered Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Registered Security which is converted or exchanged, interest with
respect to which the Stated Maturity is after the date of conversion or
exchange of such Registered Security shall not be payable.
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Section 3.8. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Guarantors, the Trustee and any agent of the
Company, a Guarantor or the Trustee may treat the Person in whose name such
Registered Security is registered in the Security Register as the owner of such
Registered Security for the purpose of receiving payment of principal of, any
premium and (subject to Sections 3.5 and 3.7) interest on and any Additional
Amounts with respect to such Registered Security and for all other purposes
whatsoever, whether or not any payment with respect to such Registered Security
shall be overdue, and none of the Company, the Guarantors, the Trustee or any
agent of the Company, a Guarantor or the Trustee shall be affected by notice to
the contrary.
The Company, the Guarantors, the Trustee and any agent of the Company,
a Guarantor or the Trustee may treat the bearer of any Bearer Security or the
bearer of any Coupon as the absolute owner of such Security or Coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not any payment with respect to such Security
or Coupon shall be overdue, and none of the Company, the Guarantors, the
Trustee or any agent of the Company, a Guarantor or the Trustee shall be
affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on
its behalf by a Depository shall have any rights under this Indenture with
respect to such global Security, and such Depository may be treated by the
Company, the Guarantors or the Trustee, and any agent of the Company, a
Guarantor or the Trustee as the owner of such global Security for all purposes
whatsoever. None of the Company, the Guarantors, the Trustee, any Paying Agent
or the Security Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Section 3.9. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities and Coupons, as
well as Securities and Coupons surrendered directly to the Trustee for any such
purpose, shall be cancelled promptly by the Trustee. 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 all Securities so delivered shall be cancelled
promptly 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 or pursuant to this Indenture. All cancelled Securities
and Coupons held by the Trustee shall be returned to the Company pursuant to a
Company Order.
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Section 3.10. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in
any Security, interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 3.11. Exempt Offerings.
(a) If specified pursuant to Section 3.01, the provisions set forth in
this Section 3.11 shall apply with respect to the related Securities until two
years after the later of the date of original issuance of the particular
Security and the last date on which the Company, any Guarantor or any Affiliate
of the Company or any Guarantor was the owner of such Security (or any
predecessor Security) (the "Resale Restriction Termination Date").
(b) Neither the Company nor any Guarantor shall, nor shall the Company
or any Guarantor permit any of its Affiliates that are Subsidiaries to,
purchase or agree to purchase or otherwise acquire any such Securities, whether
as beneficial owner or otherwise (except as agent on behalf of and for the
account of customers in the ordinary course of business as a securities broker
in unsolicited broker's transactions) unless, immediately upon any such
purchase, such Securities are submitted to the Trustee for cancellation.
(c) Until the Resale Restriction Termination Date, each such Security
shall bear substantially the following legend (the "Legend):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES
TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE
(THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY, ANY GUARANTOR OR ANY AFFILIATE OF THE COMPANY OR
ANY GUARANTOR WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) ONLY (A) TO THE COMPANY OR ANY GUARANTOR, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"),
TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED
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INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7)
OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT
TO THE RIGHT OF THE TRUSTEE, THE COMPANY AND THE GUARANTORS PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) PURSUANT TO
CLAUSE (D) TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUSTEE A
LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF APPENDIX A
HERETO. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
PRIOR TO REGISTRATION, THIS SECURITY WILL BE ISSUED AND MAY
BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL
MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF LESS
THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE
THE HOLDER FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT
OF PAYMENTS HEREON, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO
HAVE NO INTEREST WHATSOEVER HEREIN.
(d) Until the Resale Restriction Termination Date, the Trustee shall
not register the resale or other transfer of a Security unless such resale or
other transfer is made in accordance with the Legend set forth in clause (c)
above.
(e) If Securities are issued upon the transfer, exchange or
replacement of Securities bearing the Legend or if a request is made to remove
the Legend on a Security, the Securities so issued shall bear the Legend or the
Legend shall not be removed, as the case may be, unless there is delivered to
the Company and the Trustee such satisfactory evidence that neither the Legend
nor the resale and other transfer restrictions set forth therein are required
to ensure that transfers thereof comply with the relevant provisions of the
Securities Act of 1933, as amended (the "Securities Act") or that such
Securities are not "restricted securities" within the meaning of Rule 144 under
the Securities Act.
(f) Securities and related documentation (including this Indenture)
may be amended or supplemented from time to time by the Company, without the
consent of but upon notice to
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the Holders of the Securities, to modify the restrictions on and procedures for
resale and other transfers of the Securities and interests therein to reflect
any change in applicable law or regulation (or the interpretation thereof) or
in practices relating to the resale or other transfer of securities generally
if the Trustee shall have received an Opinion of Counsel to the effect that
such amendment or supplement is necessary or appropriate.
Section 3.12. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1. Satisfaction and Discharge of Indenture.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order and any Coupons appertaining thereto, and the
Trustee, on receipt of a Company Order, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore authenticated
and made available for delivery and all Coupons appertaining thereto
(other than (i) Coupons appertaining to Bearer Securities of such
series surrendered in exchange for Registered Securities of such
series and maturing after such exchange whose surrender is not
required or has been waived as provided in Section 3.5, (ii)
Securities and Coupons of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
3.6, (iii) Coupons appertaining to Securities of such series called
for redemption and maturing after the relevant Redemption Date whose
surrender has been waived as provided in Section 11.7, and (iv)
Securities and Coupons of such series 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 10.3) have been delivered to the
Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or
(ii) below, any Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation
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(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
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,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for such purpose, money in the Currency in
which such Securities are payable in an amount sufficient to
pay and discharge the entire indebtedness on such Securities
and any Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation, including the
principal of, any premium and interest on, and any Additional
Amounts with respect to such Securities and any Coupons
appertaining thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to
the Maturity thereof, as the case may be;
(2) the Company or the Guarantors have paid or caused to be
paid all other sums payable hereunder by the Company and the
Guarantors with respect to the Outstanding Securities of such series
and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel and each Guarantor has delivered
to the Trustee a Guarantor's Officers' Certificate, each stating that
all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series have
been complied with.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of any further effect if no series of Securities or any
Coupons appertaining thereto are currently outstanding, and the Trustee, on
receipt of a Company Order, at the expenses of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 6.6 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the
obligations of the Company, the Guarantors and the Trustee with respect to the
Securities of such series under Sections 3.5, 3.6, 4.3, 10.2 and 10.3, with
respect to the payment of Additional Amounts, if any, with respect to such
Securities as contemplated by Section 10.4 (but only to the
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extent that the Additional Amounts payable with respect to such Securities
exceed the amount deposited in respect of such Additional Amounts pursuant to
Section 4.1(1)(b)), and with respect to any rights to convert or exchange such
Securities into other securities shall survive.
Section 4.2. Defeasance and Covenant Defeasance.
(1) Unless pursuant to Section 3.1, either or both of (i)
defeasance of the Securities of or within a series under clause (2) of
this Section 4.2 shall not be applicable with respect to the
Securities of such series or (ii) covenant defeasance of the
Securities of or within a series under clause (3) of this Section 4.2
shall not be applicable with respect to the Securities of such series,
then such provisions, together with the other provisions of this
Section 4.2 (with such modifications thereto as may be specified
pursuant to Section 3.1 with respect to any Securities), shall be
applicable to such Securities and any Coupons appertaining thereto,
and the Company may at its option by Board Resolution, at any time,
with respect to such Securities and any Coupons appertaining thereto,
elect to have Section 4.2(2) or Section 4.2(3) be applied to such
Outstanding Securities and any Coupons appertaining thereto upon
compliance with the conditions set forth below in this Section 4.2.
(2) Upon the Company's exercise of the above option
applicable to this Section 4.2(2) with respect to any Securities of or
within a series, the Company shall be deemed to have been discharged
from its obligations with respect to such Outstanding Securities and
any Coupons appertaining thereto on the date the conditions set forth
in clause (4) of this Section 4.2 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire
Indebtedness represented by such Outstanding Securities and any
Coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of clause (5) of this Section 4.2
and the other Sections of this Indenture referred to in clauses (i)
and (ii) below, and to have satisfied all of its other obligations
under such Securities and any Coupons appertaining thereto and this
Indenture insofar as such Securities and any Coupons appertaining
thereto are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of such Outstanding
Securities and any Coupons appertaining thereto to receive, solely
from the trust fund described in clause (4) of this Section 4.2 and as
more fully set forth in such clause, payments in respect of the
principal of (and premium, if any) and interest, if any, on, and
Additional Amounts, if any, with respect to, such Securities and any
Coupons appertaining thereto when such payments are due, and any
rights of such Holder to convert such Securities into Common Stock or
exchange such Securities for other securities, (ii) the obligations of
the Company, the Guarantor and the Trustee with respect to such
Securities under Sections 3.5, 3.6, 10.2 and 10.3 and with respect to
the payment of Additional Amounts, if any, on such Securities as
contemplated by Section 10.4 (but only to the extent that the
Additional Amounts payable with respect to such Securities exceed the
amount deposited in respect of such Additional Amounts pursuant to
Section 4.2(4)(a) below), and with respect to any
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rights to convert such Securities into or exchange for other
securities, (iii) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and (iv) this Section 4.2. The Company may
exercise its option under this Section 4.2(2) notwithstanding the
prior exercise of its option under clause (3) of this Section 4.2 with
respect to such Securities and any Coupons appertaining thereto.
(3) Upon the Company's exercise of the option to have this
Section 4.2(3) apply with respect to any Securities of or within a
series, the Company shall be released from its obligations under
Sections 10.5 and 10.6, and, to the extent specified pursuant to
Section 3.1(19), any other covenant applicable to such Securities,
with respect to such Outstanding Securities and any Coupons
appertaining thereto, on and after the date the conditions set forth
in clause (4) of this Section 4.2 are satisfied (hereinafter,
"covenant defeasance"), and such Securities and any Coupons
appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with any such covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding
Securities and any Coupons appertaining thereto, 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 Section or such other
covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any
other provision herein or in any other document and such omission to
comply shall not constitute a default or an Event of Default under
Section 5.1(4) or 5.1(8) or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such
Securities and Coupons appertaining thereto shall be unaffected
thereby.
(4) The following shall be the conditions to application of
clause (2) or (3) of this Section 4.2 to any Outstanding Securities of
or within a series and any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.7 who shall agree to comply with the
provisions of this Section 4.2 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 benefit of the
Holders of such Securities and any Coupons appertaining thereto, (1)
an amount in Dollars or in such Foreign Currency in which such
Securities and any Coupons appertaining thereto are then specified as
payable at Stated Maturity, or (2) Government Obligations applicable
to such Securities and Coupons appertaining thereto (determined on the
basis of the Currency in which such Securities and Coupons
appertaining thereto are then specified as payable at Stated Maturity)
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 of principal of (and
premium, if any) and interest, if any, on such Securities and any
Coupons appertaining thereto, money in an amount, or (3) a
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combination thereof, in any case, in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, 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 other qualifying trustee) to pay and discharge, (y) the
principal of (and premium, if any) and interest, if any, on such
Outstanding Securities and any Coupons appertaining thereto at the
Stated Maturity of such principal or installment of principal or
premium or interest and (z) any mandatory sinking fund payments or
analogous payments applicable to such Outstanding Securities and any
Coupons appertaining thereto on the days on which such payments are
due and payable in accordance with the terms of this Indenture and of
such Securities and any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to such
Securities and any Coupons appertaining thereto shall have occurred
and be continuing on the date of such deposit and, with respect to
defeasance only, at any time during the period ending on the 123rd day
after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(d) In the case of an election under clause (2) of this
Section 4.2, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Company has received from the
Internal Revenue Service a letter ruling, or there has been published
by the Internal Revenue Service a Revenue Ruling, or (ii) since the
date of execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any Coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred.
(e) In the case of an election under clause (3) of this
Section 4.2, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such Outstanding
Securities and any Coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that, after the 123rd day after the
date of deposit, all money and Government
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Obligations (or other property as may be provided pursuant to Section
3.1) (including the proceeds thereof) deposited or caused to be
deposited with the Trustee (or other qualifying trustee) pursuant to
this clause (4) to be held in trust will not be subject to any case or
proceeding (whether voluntary or involuntary) in respect of the
Company under any Federal or State bankruptcy, insolvency,
reorganization or other similar law, or any decree or order for relief
in respect of the Company issued in connection therewith.
(g) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance or covenant defeasance under
clause (2) or (3) of this Section 4.2 (as the case may be) have been
complied with.
(h) Notwithstanding any other provisions of this Section
4.2(4), such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection
therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this
Indenture or any Security, if, after a deposit referred to in Section
4.2(4)(a) has been made, (a) the Holder of a Security in respect of
which such deposit was made is entitled to, and does, elect pursuant
to Section 3.1 or the terms of such Security to receive payment in a
Currency other than that in which the deposit pursuant to Section
4.2(4)(a) has been made in respect of such Security, or (b) a
Conversion Event occurs in respect of the Foreign Currency in which
the deposit pursuant to Section 4.2(4)(a) has been made, the
indebtedness represented by such Security and any Coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of (and premium, if
any), and interest, if any, on, and Additional Amounts, if any, with
respect to, such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the
case of any such election) the amount or other property deposited in
respect of such Security into the Currency in which such Security
becomes payable as a result of such election or Conversion Event based
on (x) in the case of payments made pursuant to clause (a) above, the
applicable market exchange rate for such Currency in effect on the
second Business Day prior to each payment date, or (y) with respect to
a Conversion Event, the applicable market exchange rate for such
Foreign Currency in effect (as nearly as feasible) at the time of the
Conversion Event.
The Company shall pay and indemnify the Trustee (or other qualifying
trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the
"Trustee") against any tax, fee or other charge, imposed on or assessed against
the Government Obligations deposited pursuant to this Section 4.2 or the
principal or 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 such
Outstanding Securities and any Coupons appertaining thereto.
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Anything in this Section 4.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 4.2 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 a defeasance or covenant defeasance, as applicable, in accordance with
this Section 4.2.
Section 4.3. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.1 or 4.2 in respect of any Outstanding Securities of any
series and any Coupons appertaining thereto shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and any
Coupons appertaining thereto 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 Holders of such Securities
and any Coupons appertaining thereto of all sums due and to become due thereon
in respect of principal (and premium, if any) and interest and Additional
Amounts, if any; but such money and Government Obligations need not be
segregated from other funds except to the extent required by law.
ARTICLE V
REMEDIES
Section 5.1. 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 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), unless such event is specifically deleted or modified in or
pursuant to the supplemental indenture, Board Resolution or Officers'
Certificate establishing the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on any Security of
such series, or any Additional Amounts payable with respect thereto,
when such interest becomes or such Additional Amounts become due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium
on any Security of such series, or any Additional Amounts payable with
respect thereto, when such principal or premium becomes or such
Additional Amounts become due and payable at their Maturity; or
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(3) default in the deposit of any sinking fund payment (if
applicable) when and as due by the terms of a Security of such series;
or
(4) default in the performance, or breach, of any covenant or
warranty of the Company or any Guarantor in this Indenture or the
Securities (other than a covenant or warranty a default in the
performance or the breach of which is elsewhere in this Section
specifically dealt with or which has been expressly included in this
Indenture solely for the benefit of a series of Securities other than
such 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 or such Guarantor, as the case may be, by the
Trustee or to the Company or such Guarantor, as the case may be, and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of such 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
(5) if any of default (as defined in any mortgage, indenture
or instrument under which there may be issued, or by which there may
be secured or evidenced, any Indebtedness of the Company or any
Restricted Subsidiary, whether such Indebtedness now exists or shall
hereafter be created) shall happen and shall result in such
Indebtedness in principal amount in excess of the greater of
$25,000,000 or 30% of the outstanding principal amount of all
Indebtedness of the Company and the Restricted Subsidiaries becoming
due and payable or being declared due and payable prior to the date on
which it would otherwise become due and payable, and such default
shall not be cured within a period of 30 days after there shall have
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 such series,
a written notice specifying such default and requiring the Company to
cause such default to be cured or to cause such Indebtedness to be
discharged and stating that such notice is a "Notice of Default"
hereunder; or
(6) the Company or any Restricted Subsidiary shall fail
within 60 days to pay, bond or otherwise discharge any uninsured
judgment or court order for the payment of money in excess of
$25,000,000, which is not stayed on appeal or is not otherwise being
appropriately contested in good faith; or
(7) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Company,
any Guarantor or any Restricted Subsidiary in an involuntary
proceeding under any applicable bankruptcy, insolvency, reorganization
or other similar law and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(b) a decree or order adjudging the Company, any Guarantor or
any Restricted Subsidiary to be insolvent, or approving a petition
seeking reorganization, arrangement, adjustment or composition of the
Company, any Guarantor or any Restricted Subsidiary
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and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(c) a final and non-appealable order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar official of
the Company, any Guarantor or any Restricted Subsidiary or of any
substantial part of the property of the Company, any Guarantor or any
Restricted Subsidiary, or ordering the winding up or liquidation of
the affairs of the Company, any Guarantor or any Restricted
Subsidiary; or
(8) the commencement by the Company, any Guarantor or any
Restricted Subsidiary of a voluntary proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or of a
voluntary proceeding seeking to be adjudicated insolvent or the
consent by the Company, any Guarantor or any Restricted Subsidiary to
the entry of a decree or order for relief in an involuntary proceeding
under any applicable bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any insolvency proceedings
against it, or the filing by the Company, any Guarantor or any
Restricted Subsidiary of a petition or answer or consent seeking
reorganization, arrangement, adjustment or composition of the Company,
any Guarantor or any Restricted Subsidiary or relief under any
applicable law, or the consent by the Company, any Guarantor or any
Restricted Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee or similar official of the Company, any
Guarantor or any Restricted Subsidiary or any substantial part of the
property of the Company, any Guarantor or any Restricted Subsidiary or
the making by the Company, any Guarantor or any Restricted Subsidiary
of an assignment for the benefit of creditors, or the taking of
corporate action by the Company, any Guarantor or any Restricted
Subsidiary in furtherance of any such action; or
(9) any other Event of Default provided in or pursuant to
this Indenture with respect to Securities of such series.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in clause (7) or (8)
of Section 5.1) occurs and is continuing, then the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of such
series may declare the principal of all the Securities of such series, or such
lesser amount as may be provided for in the Securities of such series, to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders), and upon any such declaration such principal
or such lesser amount shall become immediately due and payable.
If an Event of Default specified in clause (7) or (8) of Section 5.1
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such series) shall ipso facto become and be
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immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder of any Security of that series.
At any time after a declaration of acceleration with respect to the
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 not less than a majority in principal
amount of the Outstanding Securities of such series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company or any Guarantor has paid or deposited with
the Trustee a sum of money sufficient to pay
(a) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such series and
any Coupon appertaining thereto,
(b) the principal of and any premium on any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon and any Additional Amounts with
respect thereto at the rate or rates borne by or provided for in such
Securities,
(c) to the extent that payment of such interest or Additional
Amounts is lawful, interest upon overdue installments of any interest
and Additional Amounts at the rate or rates borne by or provided for
in such Securities, and
(d) 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 all other amounts due the
Trustee under Section 6.6; and
(2) all Events of Default with respect to Securities of such
series, other than the non-payment of the principal of, any premium
and interest on, and any Additional Amounts with respect to Securities
of such series which shall have become due solely by such declaration
of acceleration, shall have been cured or waived as provided in
Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on or any Additional Amounts with respect to any Security or
any Coupon appertaining thereto when such interest or Additional
Amounts shall have become due and payable and such default continues
for a period of 30 days, or
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(2) default is made in the payment of the principal of or any
premium on any Security or any Additional Amounts with respect thereto
at their Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts
at the rate or rates borne by or provided for in such Securities, and, in
addition thereto, such further amount of money 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 and
all other amounts due to the Trustee under Section 6.6.
If the Company fails to pay the money it is required to pay the
Trustee pursuant to the preceding paragraph forthwith upon the demand of the
Trustee, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the money so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any Guarantor or any other obligor upon
such Securities and any Coupons appertaining thereto and collect the monies
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any Guarantor or any other obligor upon such
Securities and any Coupons appertaining thereto, wherever situated.
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
and any Coupons appertaining thereto 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 such Securities or in aid of the exercise of any power
granted herein or therein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, any Guarantor or any Restricted
Subsidiary or any other obligor upon the Securities of any series or the
property of the Company, any Guarantor or any Restricted Subsidiary or such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company or any Guarantor for the payment of any
overdue principal, premium, interest or Additional Amounts) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of any
applicable series, of the principal and any
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premium, interest and Additional Amounts owing and unpaid in respect
of the Securities and any Coupons appertaining thereto and to file
such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of Securities or
any Coupons appertaining thereto allowed in such judicial proceeding,
and
(2) to collect and receive any monies or 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 of Securities or any Coupons 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 of Securities or any Coupons, to pay to the Trustee any
amount due to 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 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or any Coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or Coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or any Coupon in any such proceeding.
Section 5.5. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons 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 or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of the
Securities or Coupons in respect of which such judgment has been recovered.
Section 5.6. 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, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, 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 and
any predecessor Trustee under Section 6.6;
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SECOND: To the payment of the amounts then due and unpaid
upon the Securities and any Coupons for principal and any premium,
interest and Additional Amounts 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 aggregate amounts due and
payable on such Securities and Coupons for principal and any premium,
interest and Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
Section 5.7. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining
thereto 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
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of such 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;
(3) such Holder or Holders have offered to the Trustee such
indemnity as is reasonably satisfactory to it against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) 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 such
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 or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all such Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal
and any Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 3.5 and 3.7) interest on, and any Additional
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Amounts with respect to such Security or payment of such Coupon, as the case
may be, on the respective Stated Maturity or Maturities therefor specified in
such Security or Coupon (or, in the case of redemption, on the Redemption Date
or, in the case of repayment at the option of such Holder if provided in or
pursuant to this Indenture, on the date such repayment is due) and to institute
suit for the enforcement of any such payment, and such right shall not be
impaired without the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon 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 the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons in the
last paragraph of Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to each and every Holder of a Security or a Coupon
is intended to be exclusive of any other right or remedy, and every right and
remedy, to the extent permitted by law, shall 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, to the extent permitted by law,
prevent the concurrent assertion or employment of any other appropriate right
or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or Coupon 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 any Holder of a Security or a Coupon may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
Section 5.12. Control by Holders of Securities.
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 and any Coupons appertaining thereto, provided that
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(1) such direction shall not be in conflict with any rule of
law or with this Indenture or with the Securities of such series,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of
the other Holders of Securities of such series not joining in such
action.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or
interest on, or any Additional Amounts with respect to, any Security
of such series or any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under
Article IX 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 5.14. Waiver of Usury, Stay or Extension Laws.
Each of the Company and the Guarantors covenants that (to the extent
that it may lawfully do so) 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 each
of the Company and the Guarantors expressly waives (to the extent that it may
lawfully do so) 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.
Section 5.15. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
any undertaking to pay the costs of such suit, and that such court may in its
discretion assess
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reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 5.15 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of Outstanding Securities of any series, or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on or Additional
Amounts, if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into or other securities in accordance with its terms.
ARTICLE VI
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities.
Subject to the provisions hereof:
(1) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other
paper or document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or a Company
Order or of the Guarantor mentioned herein shall be sufficiently
evidenced by a Guarantor Request or Guarantor Order (in each case,
other than delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 3.3 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution or of the Guarantor's
Board of Directors may be sufficiently evidenced by a Guarantor's
Board Resolution;
(3) 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 shall be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officers' Certificate or, if such matter pertains to the Guarantor, a
Guarantor's Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and
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protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by or pursuant to this Indenture
at the request or direction of any of the Holders of Securities of any
series or any Coupons appertaining thereto pursuant to this Indenture,
unless such Holders shall have offered to the Trustee such security or
indemnity as is reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) 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, coupon or other paper or document,
but the Trustee, in its discretion, may but shall not be obligated to
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 examine,
during business hours and upon reasonable notice, the books, records
and premises of the Company and the Guarantors, personally or by agent
or attorney;
(7) 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.
(8) in the event that an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(9) the Trustee shall not be liable for any action taken or
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that
the Trustee was negligent, acted in bad faith or engaged in willful
misconduct;
(10)the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in or pursuant to this
Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee;
(11)in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
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requirements of this Indenture (but need not confirm or investigate
the mathematical calculations or other facts stated therein); and
(12) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with an Act of the Holders hereunder, and, to the extent
not so provided herein, with respect to any act requiring the Trustee
to exercise its own discretion, relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under
this Indenture or any Securities, unless it shall be proved that, in
connection with any such action taken, suffered or omitted or any such
act, the Trustee was negligent, acted in bad faith or engaged in
willful misconduct.
(13) 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.
(14) whether or not herein 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.
Section 6.2. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant
to Section 7.3(3), notice of such default hereunder actually known to a
Responsible Officer of the Trustee, unless such default shall have been cured
or waived; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any), or interest, if any, on, or
Additional Amounts or any sinking fund or purchase fund installment with
respect to, any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
best interest of the Holders of Securities and Coupons of such series; and
provided, further, that in the case of any default of the character specified
in Section 5.1(5) 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.
The Trustee shall not be deemed to have knowledge or notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or, in the performance of its duties hereunder, should
have actual knowledge thereof, or unless written notice of any event which is
in fact such a default is received by the Trustee at the Corporate Trust Office
of the Trustee, and such notice references the Securities and this Indenture.
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Section 6.3. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons 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 or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
Section 6.4. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee, the Company
or any Guarantor, in its individual or any other capacity, may become the owner
or pledgee of Securities or Coupons and, subject to Sections 6.8 and 6.12, may
otherwise deal with the Company or any Guarantor with the same rights it would
have if it were not the Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other Person.
Section 6.5. Money Held in Trust.
Except as provided in Section 4.3 and Section 10.3, money held by the
Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law and shall be held uninvested. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed to in writing with the Company or any Guarantor.
Section 6.6. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee such compensation as the Company
and the Trustee shall from time to time agree in writing for all
services rendered by the Trustee 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 or arising out of or
in connection with the acceptance or administration of the trust or
trusts hereunder (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 the
Trustee's negligence or bad faith; and
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(3) to indemnify the Trustee and any predecessor Trustee and
their agents, officers, directors and employees for, and to hold them
harmless against, any loss, liability or expense including taxes
(other than taxes based upon, measured by or determined by the income
of the Trustee) incurred without negligence or bad faith on their
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 themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties hereunder, except to the extent that any such loss, liability
or expense was due to the Trustee's negligence or bad faith.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities of
any series upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of, and premium
or interest on or any Additional Amounts with respect to Securities or any
Coupons appertaining thereto.
To the extent permitted by law, any compensation or expense incurred
by the Trustee after a default specified in or pursuant to Section 5.1 is
intended to constitute an expense of administration under any then applicable
bankruptcy or insolvency law. "Trustee" for purposes of this Section 6.6 shall
include any predecessor Trustee but the negligence or bad faith of any Trustee
shall not affect the rights of any other Trustee under this Section 6.6.
The provisions of this Section 6.6 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the
Trustee and shall apply with equal force and effect to the Trustee in its
capacity as Authenticating Agent, Paying Agent or Security Registrar.
Section 6.7. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a Corporation
organized and doing business under the laws of the United States of America,
any state thereof or the District of Columbia, that is eligible under Section
310(a)(1) of the Trust Indenture Act to act as trustee under an indenture
qualified under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000, and that is subject to supervision or examination
by Federal or state authority. If at any time the Trustee 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 6.8. Disqualification; 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.
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Section 6.9. Resignation and Removal; Appointment of Successor.
(1) 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 pursuant to Section 6.10.
(2) Subject to Section 6.9(1) above, 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 6.10 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 such series.
(3) 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 the Company. If the instrument of
acceptance by a successor Trustee required by Section 6.10 shall not
have been delivered to the Trustee within 30 days after the giving of
such notice of removal, the removed Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to such series.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations
imposed upon an indenture trustee under Section 310(b) of the Trust
Indenture Act with respect to Securities of any series after written
request therefor by the Company or any Holder of a Security of such
series who has been a bona fide Holder of a Security of such series
for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.7
and shall fail to resign after written request therefor by the Company
or any such Holder, or
(c) 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, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any
Holder of a Security 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
removal of the Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
(5) 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
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of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of such 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 6.10. If, within one year after such resignation, removal
or incapacity, 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 6.10, 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 of Securities and accepted
appointment in the manner required by Section 6.10, any Holder of a
Security 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.
(6) 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 by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Registered
Securities, if any, of such series as their names and addresses appear
in the Security Register and, if Securities of such series are issued
as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the
United States. 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.
(7) In no event shall any retiring Trustee be liable for the
acts or omissions of any successor Trustee hereunder.
Section 6.10. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee
with respect to all Securities, such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and 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 hereunder of the retiring Trustee; but, on the request of
the Company or such successor Trustee, such retiring Trustee, upon
payment of its charges, shall execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and, subject to Section 10.3, shall
duly assign, transfer and deliver to such successor Trustee all
property and
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money held by such retiring Trustee hereunder, subject nevertheless to
its claim, if any, provided for in Section 6.6.
(2) Upon the appointment hereunder of any successor Trustee
with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and such successor Trustee 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, such 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, 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 that no Trustee shall be responsible for any notice given
to, or received by, or any act or failure to act on the part of any
other Trustee hereunder, 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, such
retiring Trustee shall have no further responsibility for the exercise
of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to
the Securities of that or those series to which the appointment of
such successor Trustee relates other than as hereinafter expressly set
forth, 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 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 such successor
Trustee, such retiring Trustee, upon payment of its charges with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates and subject to Section
10.3 shall duly assign, transfer and deliver to such successor
Trustee, to the extent contemplated by such supplemental indenture,
the 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, subject to its claim,
if any, provided for in Section 6.6.
(3) Upon request of any Person appointed hereunder as a
successor Trustee, the Company and the Guarantors 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 paragraph (1) or (2) of this Section, as the
case may be.
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(4) No Person shall accept its appointment hereunder as a
successor Trustee unless at the time of such acceptance such successor
Person shall be qualified and eligible under this Article.
Section 6.11. 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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
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 6.12. Preferential Collection of Claims against the
Company.
If and when the Trustee shall be or become a creditor, directly or
indirectly, secured or unsecured, of the Company or any Guarantor (or any other
obligor upon the Securities of any series or the Coupons, if any, appertaining
thereto), the Trustee shall be subject to the provisions of Section 311 of the
Trust Indenture Act regarding the collection of claims against the Company or
such Guarantor (or any such other obligor).
Section 6.13. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable
to the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that
or those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment or pursuant to Section 3.6, 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 must be acceptable to the Company and,
except as provided in or pursuant to this Indenture, shall at all times be a
corporation that would be permitted by the Trust Indenture Act to act as
trustee under an indenture qualified under the Trust Indenture Act, is
authorized under applicable law and by its charter to act as an Authenticating
Agent and has a combined capital and surplus (computed in accordance with
Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect specified in this Section.
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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 all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, 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 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 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 (i) mail written
notice of such appointment by first-class mail, postage prepaid, to all Holders
of Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. 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 Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 6.6.
The provisions of Sections 3.8, 6.3 and 6.4 shall be applicable to
each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series
may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
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This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By
---------------------------------
as Authenticating Agent
By
---------------------------------
Authorized Signatory
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an
office in a Place of Payment designated by the Company with respect to such
series of Securities.
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE, THE GUARANTORS AND COMPANY
Section 7.1. Company and the Guarantors to Furnish Trustee Names
and Addresses of Holders.
The Company and the Guarantors shall furnish or cause to be furnished
to the Trustee:
(1) semi-annually with respect to Securities of each series
not later than January 15 and July 15 of the year, commencing January
15, 1999, or upon such other dates as are set forth in or pursuant to
the Board Resolution or indenture supplemental hereto authorizing such
series, a list, in each case in such form as the Trustee may
reasonably require, of the names and addresses of Holders as of the
applicable date, and
(a) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company or a
Guarantor 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,
provided, however, that so long as the Trustee is the Security Registrar no
such list shall be requested to be furnished.
Section 7.2. Preservation of Information; Communications to
Holders.
(1) 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 7.1 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 7.1 upon receipt of a
new list so furnished.
(2) The rights of the 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.
(3) Every Holder of Securities, by receiving and holding the
same, agrees with the Company, the Guarantors and the Trustee that
neither the Company, any Guarantor 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 7.3. Reports by Trustee.
(1) Within 60 days after September 15 of each year commencing
with the first September 15 following the first issuance of Securities
pursuant to Section 3.1, if required by Section 313(a) of the Trust
Indenture Act, the Trustee shall transmit, pursuant
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to Section 313(c) of the Trust Indenture Act, a brief report dated as
of such September 15 with respect to any of the events specified in
said Section 313(a) which may have occurred since the later of the
immediately preceding September 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by
Section 313(a) of the Trust Indenture Act at the times specified
therein.
(3) Reports pursuant to this Section shall be transmitted in
the manner and to the Persons required by Sections 313(c) and 313(d)
of the Trust Indenture Act.
Section 7.4. Reports by Company and the Guarantors.
The Company and the Guarantors, pursuant to Section 314(a) of the
Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company
or any Guarantor, as the case may be, is required to file the same
with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions
of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company or such Guarantor,
as the case may be, may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934, as amended; or, if the Company or any Guarantor, as the case
may be, is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Securities Exchange Act
of 1934, as amended, in respect of a security listed and registered on
a national securities exchange as may be prescribed from time to time
in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company or any Guarantor, as the case may
be, with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, such summaries of any information, documents
and reports required to be filed by the Company or any Guarantor
pursuant to paragraphs (1) and (2) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the
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Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
(whether or not affiliated with the Company), or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to any
other Person (whether or not affiliated with the Company), and the Company
shall not permit any other Person (whether or not affiliated with the Company)
to consolidate with or merge into the Company or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to the
Company; unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
as an entirety or 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 as an entirety
or substantially as an entirety shall be a Corporation organized and
existing under the laws of any state of the United States, or the
District of Columbia and shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee)
supplemental hereto, executed by the successor Person and the
Guarantors and delivered to the Trustee, the due and punctual payment
of the principal of, any premium and interest on and any Additional
Amounts with respect to all the Securities and the performance of
every obligation in this Indenture and the Outstanding Securities on
the part of the Company to be performed or observed; a
(2) immediately after giving effect to such transaction, no
Event of Default or event which, after notice or lapse of time, or
both, would become an Event of Default, shall have occurred and be
continuing; and
(3) each of the Company and the successor Person has
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and the required supplemental indenture comply with
this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 8.2. Successor Person Substituted for Company.
Upon any consolidation by 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 to any Person in
accordance with Section 8.1, the successor Person formed by such consolidation
or into which the Company is merged or to which such
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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 released from all obligations and covenants under this Indenture, the
Securities and the Coupons.
Section 8.3. Guarantor May Consolidate, Etc., Only on Certain
Terms.
A Guarantor shall not consolidate with or merge into any other Person
(whether or not affiliated with such Guarantor), or convey, transfer or lease
its properties and assets as an entirety or substantially as an entirety to any
other Person (whether or not affiliated with such Guarantor), and a Guarantor
shall not permit any other Person (whether or not affiliated with such
Guarantor) to consolidate with or merge into such Guarantor or convey, transfer
or lease its properties and assets as an entirety or substantially as an
entirety to such Guarantor; unless:
(1) in case the Guarantor shall consolidate with or merge
into another Person or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any Person,
the Person formed by such consolidation or into which such Guarantor
is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Guarantor as an
entirety or substantially as an entirety shall be a Corporation
organized and existing under the laws of any state of the United
States of America or the District of Columbia and shall expressly
assume, by an indenture (or indentures, if at such time there is more
than one Trustee) supplemental hereto, executed by the Company and the
successor Person and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of such Guarantor under its Guarantee
and the performance of every other covenant of this Indenture on the
part of such Guarantor to be performed or observed;
(2) immediately after giving effect to 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 occurred and be
continuing; and
(3) each of the Guarantor and the successor Person has
delivered to the Trustee a Guarantor's Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and the required supplemental indenture
comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Section 8.4. Successor Person Substituted for Guarantor.
Upon any consolidation or merger or any conveyance, transfer or lease
of the properties and assets of a Guarantor as an entirety or substantially as
an entirety to any Person in accordance with Section 8.03, the successor Person
formed by such consolidation or into which the Guarantor 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, such Guarantor under this
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Indenture with the same effect as if such successor Person had been named as a
Guarantor herein, and thereafter, except in the case of a lease to another
Person, the predecessor Person shall be released from all obligations and
covenants under this Indenture.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the
Company (when authorized by or pursuant to a Board Resolution), a Guarantor
(when authorized by such Guarantor's Board Resolution) and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company or a Guarantor, and the assumption by any such successor of
the covenants of the Company or such Guarantor, as the case may be,
contained herein and in the Securities; or
(2) to add to the covenants of the Company or a Guarantor for
the benefit of the Holders of all or any series of Securities (as
shall be specified in such supplemental indenture or indentures) or to
surrender any right or power herein conferred upon the Company or a
Guarantor; or
(3) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of, any premium or interest on or any Additional Amounts
with respect to Securities, to permit Bearer Securities to be issued
in exchange for Registered Securities, to permit Bearer Securities to
be exchanged for Bearer Securities of other authorized denominations
or to permit or facilitate the issuance of Securities in
uncertificated form, provided any such action shall not adversely
affect the interests of the Holders of Outstanding Securities of any
series or any Coupons appertaining thereto in any material respect; or
(4) to establish the form or terms of Securities of any
series and any Coupons appertaining thereto as permitted by Sections
2.1 and 3.1; or
(5) 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 6.10; or
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(6) to cure any ambiguity or 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 which shall not
adversely affect the interests of the Holders of Securities of any
series then Outstanding or any Coupons appertaining thereto in any
material respect; or
(7) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as
herein set forth; or
(8) to add any additional Events of Default with respect to
all or any series of Securities (as shall be specified in such
supplemental indenture); or
(9) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Article IV, provided that any such action shall not adversely affect
the interests of any Holder of an Outstanding Security of such series
and any Coupons appertaining thereto or any other Outstanding Security
or Coupon in any material respect; or
(10) to secure the Securities pursuant to Section 10.5 or
otherwise; or
(11) to make provisions with respect to conversion or
exchange rights of Holders of Securities of any series; or
(12) to amend or supplement any provision contained herein or
in any supplemental indenture, provided that no such amendment or
supplement shall adversely affect the interests of the Holders of any
Securities then Outstanding.
Section 9.2. 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, the
Guarantors and the Trustee, the Company (when authorized by or pursuant to a
Company's Board Resolution), each Guarantor (when authorized by or pursuant to
a Guarantor's Board Resolutions), 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 or of the Securities of such series;
provided, however, that no such supplemental indenture, without the consent of
the Holder of each Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any
premium or installment of interest on or any Additional Amounts or
other amounts payable with respect to, any Security, or reduce the
principal amount thereof or the rate (or modify the calculation of
such rate) of interest thereon or any Additional Amounts or other
amounts payable with
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respect thereto, or any premium payable upon the redemption thereof,
or change the obligation of the Company to pay Additional Amounts
pursuant to Section 10.4 (except as contemplated by Section 8.1(1) and
permitted by Section 9.1(1)), or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2 or the amount thereof provable in bankruptcy pursuant to
Section 5.4, change the redemption provisions or adversely affect the
right of repayment at the option of any Holder as contemplated by
Article XIII, or change the Place of Payment, Currency in which the
principal of, any premium or interest on, or any Additional Amounts or
other amounts payable with respect to any Security 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, in the case of
repayment at the option of the Holder, on or after the date for
repayment), or
(2) 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 reduce the
requirements of Section 15.4 for quorum or voting, or
(3) modify or effect in any manner adverse to the Holders the
terms and conditions of the obligations of the Guarantors in respect
of the due and punctual payments of principal of, or any premium or
interest on or any sinking fund requirements or Additional Amounts or
other amounts payable with respect to, the Securities, or
(4) modify any of the provisions of this Section, Section
5.13 or Section 10.9, 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, or
(5) make any change that adversely affects the right to
convert or exchange any Security into or for other securities in
accordance with its terms.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
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.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided, that unless such consent shall
have become
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effective by virtue of the requisite percentage having been obtained prior to
the date which is 90 days after such record date, any such consent previously
given shall automatically and without further action by any Holder be cancelled
and of no further effect.
It shall not be necessary for any Act of Holders of Securities 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 9.3. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Section 315 of the Trust Indenture Act)
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 and an Officers' Certificate and Guarantor's Officer Certificates
stating that all conditions precedent to the execution of such supplemental
indenture have been fulfilled. 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 9.4. 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 a Security theretofore or thereafter authenticated and delivered
hereunder and of any Coupon appertaining thereto shall be bound thereby.
Section 9.5. 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.
Section 9.6. Notice of Supplemental Indenture.
Promptly after the execution by the Company, the Guarantors and the
Trustee of any supplemental indenture pursuant to Section 9.2, the Company
shall transmit to the Holders of Outstanding Securities of any series affected
thereby a notice setting forth the substance of such supplemental indenture.
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ARTICLE X
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and
Additional Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal
of, any premium and interest on and any Additional Amounts and other amounts
payable with respect to the Securities of such series in accordance with the
terms thereof, any Coupons appertaining thereto and this Indenture. An
installment of principal, premium, if any, or interest shall be considered paid
on the date due if the Trustee or Paying Agent (other than the Company and the
Guarantors) holds on that date money designated for and sufficient to pay such
installment. Any interest due on any Bearer Security on or before the Maturity
thereof, and any Additional Amounts payable with respect to such interest,
shall be payable only upon presentation and surrender of the Coupons
appertaining thereto for such interest as they severally mature.
Section 10.2. Maintenance of Office or Agency.
The Company or a Guarantor shall maintain in each Place of Payment for
any series of Securities an Office or Agency where Securities of such series
(but not Bearer Securities, except as otherwise provided below, unless such
Place of Payment is located outside the United States) may be presented or
surrendered for payment, where Securities of such series may be surrendered for
registration of transfer or exchange, where Securities of such series that are
convertible or exchangeable may be surrendered for conversion or exchange, and
where notices and demands to or upon the Company or a Guarantor in respect of
the Securities of such series relating thereto and this Indenture may be
served. If Securities of a series are issuable as Bearer Securities, the
Company or a Guarantor shall maintain, subject to any laws or regulations
applicable thereto, an Office or Agency in a Place of Payment for such series
which is located outside the United States where Securities of such series and
any Coupons appertaining thereto may be presented and surrendered for payment;
provided, however, that if the Securities of such series are listed on The
Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Company or a
Guarantor shall maintain a Paying Agent in London, Luxembourg or any other
required city located outside the United States, as the case may be, so long as
the Securities of such series are listed on such exchange. The Company or a
Guarantor 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 or the Guarantors 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, except that Bearer Securities of such
series and any Coupons appertaining thereto may be presented and surrendered
for payment at the place specified for the purpose with respect to such
Securities as provided in or pursuant to this Indenture, and the Company and
the Guarantors each hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
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Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency in the United States or
by check mailed to any address in the United States or by transfer to an
account maintained with a bank located in the United States; provided, however,
if amounts owing with respect to any Bearer Securities shall be payable in
Dollars, payment of principal of, any premium or interest on and any Additional
Amounts with respect to any such Security may be made at the Corporate Trust
Office of the Trustee or any Office or Agency designated by the Company in the
Borough of Manhattan, The City of New York, if (but only if) payment of the
full amount of such principal, premium, interest or Additional Amounts at all
offices outside the United States maintained for such purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company or a Guarantor 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 or the Guarantors of its
obligation to maintain an Office or Agency in each Place of Payment for
Securities of any series for such purposes. The Company or a Guarantor shall
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. Unless
otherwise provided in or pursuant to this Indenture, the Company and the
Guarantors each hereby designates as the Place of Payment for each series of
Securities the Borough of Manhattan, The City of New York, and initially
appoints the Corporate Trust Office of the Trustee as the Office or Agency of
the Company and the Guarantors, as the case may be, in the Borough of
Manhattan, The City of New York for such purpose. The Company or a Guarantor,
as the case may be, may subsequently appoint a different Office or Agency in
the Borough of Manhattan, The City of New York for the Securities of any
series.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so
required, at least one exchange rate agent.
Section 10.3. 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 shall, on or before each due date of
the principal of, any premium or interest on or Additional Amounts or other
amounts payable with respect to any of the Securities of such series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 3.1 for the Securities of such series)
sufficient to pay the principal or any premium, interest or Additional Amounts
or other amounts so becoming due until such sums shall be paid to such
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Persons or otherwise disposed of as herein provided, and shall 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 shall, on or prior to each due date of the principal
of, any premium or interest on or any Additional Amounts or other amounts
payable with respect to any Securities of such series, deposit with any Paying
Agent a sum (in the currency or currencies, currency unit or units or composite
currency or currencies described in the preceding paragraph) sufficient to pay
the principal or any premium, interest or Additional Amounts or other amounts
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, 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 shall 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 shall:
(1) hold all sums held by it for the payment of the principal
of, any premium or interest on or any Additional Amounts or other
amounts payable with respect to Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as provided in or
pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of
any payment of principal, any premium or interest on or any Additional
Amounts or other amounts payable with respect to the Securities of
such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company or the Guarantor 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 or the Guarantor 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 terms 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 sums.
Except as otherwise provided herein or pursuant hereto, 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, any premium or interest on or any
Additional Amounts or other amounts payable with respect to any Security of any
series or any Coupon appertaining thereto and remaining unclaimed for two years
after such principal or any such premium or interest or any such
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Additional Amounts shall have become due and payable shall be paid to the
Company on Company Request (or if deposited by a Guarantor, paid to such
Guarantor on Guarantor Request), or (if then held by the Company or a
Guarantor) shall be discharged from such trust; and the Holder of such Security
or any Coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company and the Guarantors 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 an Authorized Newspaper in each Place of Payment for such
series or to be mailed to Holders of Registered Securities of such series, or
both, 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
or mailing nor shall it be later than two years after such principal and any
premium or interest or Additional Amounts shall have become due and payable,
any unclaimed balance of such money then remaining will be repaid to the
Company or the Guarantor, as the case may be.
Section 10.4. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company and the Guarantor agrees to pay to the Holder of any such
Security or any Coupon appertaining thereto Additional Amounts as provided in
or pursuant to this Indenture or such Securities. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of or any
premium or interest on, or in respect of, any Security of any series or any
Coupon or the net proceeds received on the sale or exchange of any Security of
any series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided by the terms of such series established hereby or
pursuant hereto to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to such terms, and express
mention of the payment of Additional Amounts (if applicable) in any provision
hereof shall not be construed as excluding the payment of Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers' Certificate, the Company
or the Guarantor, as the case may be, shall furnish to the Trustee and the
principal Paying Agent or Paying Agents, if other than the Trustee, an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of and premium, if any, or interest on
the Securities of such series shall be made to Holders of Securities of such
series or the Coupons appertaining thereto who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of such series. If any such withholding
shall be required, then such Officers' Certificate shall specify by country the
amount, if any, required to
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be withheld on such payments to such Holders of Securities or Coupons, and the
Company and the Guarantor agree to pay to the Trustee or such Paying Agent the
Additional Amounts required by the terms of such Securities. The Company and
the Guarantor covenants to indemnify the Trustee and any Paying Agent for, and
to hold them harmless against, any loss, liability or expense reasonably
incurred without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
Section 10.5. Limitation on Liens.
The Company will not, and will not permit any Restricted Subsidiary
to, create, incur or assume any Lien (other than Permitted Liens) on Restricted
Property to secure the payment of Indebtedness of the Company or any Restricted
Subsidiary if, immediately after the creation, incurrence or assumption of such
Lien, the aggregate outstanding principal amount of all Indebtedness of the
Company and the Restricted Subsidiaries that is secured by Liens (other than
Permitted Liens) on Restricted Property would exceed the greater of (i) $30
million or (ii) 15% of the aggregate outstanding principal amount of all
Indebtedness of the Company and the Restricted Subsidiaries (whether or not so
secured), unless effective provision is made whereby the Securities (together
with, if the Company shall so determine, any other Indebtedness ranking equally
with the Securities, whether then existing or thereafter created) are secured
equally and ratably with (or prior to) such Indebtedness (but only for so long
as such Indebtedness is so secured). The foregoing limitation does not apply to
(i) Liens existing on the Closing Date; (ii) Liens granted after the Closing
Date on any assets or Capital Stock of the Company or its Restricted
Subsidiaries created in favor of the Holders; (iii) Liens with respect to the
assets of a Restricted Subsidiary granted by such Restricted Subsidiary to the
Company or another Restricted Subsidiary to secure Indebtedness owing to the
Company or such other Restricted Subsidiary; (iv) Liens securing Indebtedness
which is incurred to refinance secured Indebtedness which is permitted to be
incurred under Section 10.6; provided that such Liens do not extend to or cover
any property or assets of the Company or any Restricted Subsidiary other than
the property or assets securing the Indebtedness being refinanced; (v) Liens
securing Indebtedness permitted under Section 10.6; or (vii) Permitted Liens.
Section 10.6. Limitation on Indebtedness of Restricted
Subsidiaries.
The Company will not permit any Restricted Subsidiary to incur any
Indebtedness if, immediately after the incurrence or assumption of such
Indebtedness, the aggregate outstanding principal amount of all Indebtedness of
the Restricted Subsidiaries would exceed the greater of (i) $30 million or (ii)
15% of the aggregate outstanding principal amount of all Indebtedness of the
Company and the Restricted Subsidiaries; provided that, in any event, a
Restricted Subsidiary may incur Indebtedness to extend, renew or replace
Indebtedness of such Restricted Subsidiary to the extent that the principal
amount of the Indebtedness so incurred does not exceed the principal amount of
the Indebtedness extended, renewed or replaced thereby immediately prior to
such extension, renewal or replacement plus any premium, accrued and unpaid
interest or capitalized interest payable thereon.
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Section 10.7. Designation of Subsidiaries.
The Company may designate a Restricted Subsidiary as an Unrestricted
Subsidiary or designate an Unrestricted Subsidiary as a Restricted Subsidiary
at any time, provided that (i) immediately after giving effect to such
designation, the Leverage Ratio of the Restricted Group is not greater than 7:1
and the Company and the Restricted Subsidiaries are in compliance with Sections
10.5 and 10.6, and (ii) an Officers' Certificate with respect to such
designation is delivered to the Trustee within 75 days after the end of the
fiscal quarter of the Company in which such designation is made (or, in the
case of a designation made during the last fiscal quarter of the Company's
fiscal year, within 120 days after the end of such fiscal year), which
Officers' Certificate shall state the effective date of such designation.
Section 10.8. Corporate Existence.
Subject to Article VIII, the Company and the Guarantors shall do or
cause to be done all things necessary to preserve and keep in full force and
effect their respective corporate existences and that of each Restricted
Subsidiary and their respective rights (charter and statutory) and franchises;
provided, however, that the foregoing shall not obligate the Company, any
Guarantor or any Restricted Subsidiary to preserve any such right or franchise
if the Company or such Guarantor, as the case may be, or any Restricted
Subsidiary shall determine that the preservation thereof is no longer desirable
in the conduct of its business or the business of such Restricted Subsidiary.
Section 10.9. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount, if any, of original
issue discount (including daily rates and accrual periods) accrued on
Outstanding Securities as of the end of such 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 XI
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of (1) less than all of the Securities of any
series or (2) all of the Securities of any series, with the same issue
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date, interest rate or formula, Stated Maturity and other terms, 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 and of the principal amount of Securities of
such series to be redeemed.
Section 11.3. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms are to be
redeemed, 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 portions of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security
of such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be
redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted into Common Stock or exchanged for other securities in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption. Securities
which have been converted or exchanged during a selection of Securities to be
redeemed shall be treated by the Trustee as Outstanding for the purpose of such
selection.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.6, not less than 30 nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified in the Securities to be redeemed, to the
Holders of Securities to be redeemed. Failure to give notice by mailing in the
manner herein provided to the Holder of any Registered Securities designated
for redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the Holder of
such Security will receive, without charge, a new Security or
Securities of authorized denominations for the principal amount
thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Security or portion thereof to
be redeemed, and, if applicable, that interest thereon shall cease to
accrue on and after said date,
(6) the place or places where such Securities, together (in
the case of Bearer Securities) with all Coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price and any accrued interest and
Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing Coupon or Coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is
furnished,
(9) if Bearer Securities of any series are to be redeemed and
no Registered Securities of such series are to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on the Redemption Date pursuant to Section 3.5
or otherwise, the last date, as determined by the Company, on which
such exchanges may be made,
(10) in the case of Securities of any series that are
convertible into Common Stock or exchangeable for other securities,
the conversion or exchange price or rate, the date or dates on which
the right to convert or exchange the principal of the Securities of
such series to be redeemed will commence or terminate and the place or
places where such Securities may be surrendered for conversion or
exchange, and
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(11) the CUSIP number or the Euroclear or the Cedel reference
numbers of such Securities, if any (or any other numbers used by a
Depository to identify such Securities).
A notice of redemption published as contemplated by Section 1.6 need
not identify particular Registered Securities to be redeemed.
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.
Section 11.5. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 11.4, 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 10.3) an amount of money in the applicable Currency sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date, unless otherwise specified pursuant to Section 3.1 or in
the Securities of such series) any accrued interest on and Additional Amounts
with respect thereto, all such Securities or portions thereof which are to be
redeemed on that date.
Section 11.6. 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 and the Coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with any accrued interest
and Additional Amounts to the Redemption Date; provided, however, that, except
as otherwise provided in or pursuant to this Indenture or the Bearer Securities
of such series, installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of Coupons for such interest (at an Office or Agency
located outside the United States except as otherwise provided in Section
10.2), and provided, further, that, except as otherwise specified in or
pursuant to this Indenture or the Registered Securities of such series,
installments of interest on Registered Securities whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the Regular Record Dates therefor according to their terms
and the provisions of Section 3.7.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
Coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that any interest or Additional Amounts represented by
Coupons shall be payable only upon presentation and surrender of those Coupons
at an Office or Agency for such Security located outside of the United States
except as otherwise provided in Section 10.2.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 11.7. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (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 Registered Security or Securities
of the same series, containing identical terms and provisions, 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. If a Security in global form is so surrendered,
the Company shall execute, and the Trustee shall authenticate and deliver to
the U.S. Depository or other Depository for such Security in global form as
shall be specified in the Company Order with respect thereto to the Trustee,
without service charge, a new Security in global form in a denomination equal
to and in exchange for the unredeemed portion of the principal of the Security
in global form so surrendered.
ARTICLE XII
SINKING FUNDS
Section 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
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The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series and this Indenture.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of any series to be made pursuant
to the terms of such Securities (1) deliver Outstanding Securities of such
series (other than any of such Securities previously called for redemption or
any of such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If, as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
12.2, the principal amount of Securities of such series to be redeemed in order
to satisfy the remaining sinking fund payment shall be less than $100,000, the
Trustee need not call Securities of such series for redemption, except upon
Company Request, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that series purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
Section 12.3. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, 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 of
Securities of that series pursuant to Section 12.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment,
and will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall
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thereupon be obligated to pay the amount therein specified. Not less than 60
days before 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 11.3 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 11.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
11.6 and 11.7.
ARTICLE XIII
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 3.9, shall
not operate as a payment, redemption or satisfaction of the Indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 13.1, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
ARTICLE XIV
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for
such amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company or a Guarantor may
specify in a written notice to the Trustee.
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ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 15.2. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 15.1, to
be held at such time and at such place in the Borough of Manhattan,
The City of New York, or, if Securities of such series have been
issued in whole or in part as Bearer Securities, in London or in such
place outside the United States as the Trustee shall determine. Notice
of every meeting of Holders of Securities of any series, setting forth
the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.6, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a
Board Resolution), a Guarantor (by or pursuant to a Guarantor's Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee
to call a meeting of the Holders of Securities of such series for any
purpose specified in Section 15.1, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed notice of or made the first
publication of the notice of such meeting within 21 days after receipt
of such request (whichever shall be required pursuant to Section 1.6)
or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company, a Guarantor or the Holders of
Securities of such series in the amount above specified, as the case
may be, may determine the time and the place in the Borough of
Manhattan, The City of New York, or, if Securities of such series are
to be issued as Bearer Securities, in London for such meeting and may
call such meeting for such purposes by giving notice thereof as
provided in clause (1) of this Section.
Section 15.3. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons
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entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel, any representatives of a Guarantor and its counsel and
any representatives of the Company and its counsel.
Section 15.4. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for any meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any reconvened meeting, such
reconvened meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such reconvened meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 15.2(1), except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted only by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
9.2, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other Act which this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the affirmative
vote of the Holders of such specified percentage in principal amount of the
Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented
at the meeting.
Section 15.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(1) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of such series in
regard to proof of the holding of Securities of such series and of the
appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall
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deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the
manner specified in Section 1.4 and the appointment of any proxy shall
be proved in the manner specified in Section 1.4 or by having the
signature of the person executing the proxy witnessed or guaranteed by
any trust company, bank or banker authorized by Section 1.4 to certify
to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 1.4
or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in
Section 15.2(2), in which case the Company, the Guarantor or the
Holders of Securities of the series calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal
amount of Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a
Holder of a Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly
called pursuant to Section 15.2 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so
adjourned without further notice.
Section 15.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 15.2 and, if
applicable,
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Section 15.4. Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy shall be
delivered to the Company and the Guarantors, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE XVI
GUARANTEES
Section 16.1. Unconditional Guarantee.
Subject to the provisions of this Article XVI, each of the Initial
Guarantors hereby fully, unconditionally and irrevocably guarantees, and each
Subsidiary required to execute a supplemental indenture as a Subsequent
Guarantor pursuant to Section 10.12 will be deemed to fully, unconditionally
and irrevocably guarantee, to each Holder and to the Trustee on behalf of the
Holders, the due and punctual payment of the principal of, and premium, if any,
and interest on, and Additional Amounts and other amounts payable with respect
to, each Security, the due and punctual payment of interest on the overdue
principal of, and premium, if any, and interest on, and Additional Amounts and
other amounts payable with respect to, the Securities, to the extent lawful,
and the due and punctual performance of all other obligations of the Company to
the Holders or the Trustee, all in accordance with the terms of such Securities
and this Indenture, when and as the same shall become due and payable, whether
at Stated Maturity, by declaration of acceleration, upon redemption, repurchase
or repayment or otherwise. In case of the failure of the Company punctually to
pay any such principal, premium, interest, Additional Amounts or other payment,
each Guarantor hereby agrees to cause any such payment to be made punctually
when and as the same shall become due and payable, whether at Stated Maturity,
by declaration of acceleration, upon redemption, repurchase or repayment or
otherwise, and as if such payment were made by the Company.
Each Guarantor hereby agrees that its obligations hereunder shall be
as principal and not merely as surety, and shall be absolute, irrevocable and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any Security or this Indenture, any failure
to enforce the provisions of any Security or this Indenture, or any waiver,
modification, consent or indulgence granted with respect thereto by the Holder
of such Security or the Trustee, the recovery of any judgment against the
Company or any action to enforce the same, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or guarantor.
Each Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of merger, insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, the
benefit of discussion, protest or notice with respect to any such Security or
the debt evidenced thereby and all demands whatsoever, and covenants that no
Guarantee will be discharged as to any such Security except by payment in full
of all amounts due in respect of such Security and by the complete performance
of all other obligations contained in such Security and this Indenture.
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The maturity of the obligations guaranteed hereby may be accelerated
as provided in Article V for the purposes of this Article XVI. In the event of
any declaration of acceleration of such obligations as provided in Article V,
such obligations (whether or not due and payable) shall forthwith become due
and payable by each Guarantor for the purpose of this Article XVI. In addition,
without limiting the foregoing provisions, upon the effectiveness of an
acceleration under Article V, the Trustee shall promptly make a demand for
payment on the Securities under each Guarantee provided for in this Article
XVI.
If the Trustee or the Holder of any Security is required by any court
or otherwise to return to the Company or any Guarantor, or any custodian,
receiver, liquidator, trustee, sequestrator or other similar official acting in
relation to the Company or any Guarantor, any amount paid to the Trustee or
such Holder in respect of a Security, any Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor
further agrees, to the fullest extent that it may lawfully do so, that, as
between it, on the one hand, and the Holders and the Trustee, on the other
hand, the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article V hereof for the purposes of each Guarantee,
notwithstanding any stay, injunction or other prohibition issued or imposed
under any applicable bankruptcy law preventing such acceleration in respect of
the obligations guaranteed hereby.
A Guarantor shall be subrogated to all rights of the Holder of any
Security against the Company in respect of any amounts paid to the Trustee or
such Holder by such Guarantor pursuant to the provisions of its Guarantee;
provided, however, that no Guarantor shall be entitled to enforce, or to
receive any payments arising out of or based upon, such right of subrogation
until the principal of, and premium, if any, and interest on, and any
Additional Amounts and other amounts payable with respect to, all Securities
shall have been paid in full and all other obligations contained in the
Securities and this Indenture shall have been performed. If any amount shall be
paid to any Guarantor in violation of the preceding sentence and all amounts
payable in respect of the Securities shall not have been paid in full, such
amount shall be deemed to have been paid to such Guarantor for the benefit of,
and held in trust for the benefit of, the Holders, and shall forthwith be paid
to the Trustee for the benefit of the Holders to be credited and applied upon
such amounts. Each Guarantor acknowledges that it will receive direct and
indirect benefits from the issuance of the Securities pursuant to this
Indenture.
Anything to the contrary in this Indenture notwithstanding, each
Guarantee shall be, and hereby is, limited to the maximum amount that can be
guaranteed by the applicable Guarantor without rendering such Guarantee, as it
relates to such Guarantor, voidable under any applicable law relating to
fraudulent conveyance, fraudulent transfer or similar laws affecting the rights
of creditors generally.
Each Guarantee set forth in this Section 16.1 shall be valid and
obligatory for any purpose with respect to a Security until the certificate of
authentication of such Security shall have been signed by or on behalf of the
Trustee.
91
<PAGE> 98
Section 16.2. Operation of Guarantees.
By execution of this Agreement (in the case of the Initial Guarantors)
or a supplemental indenture (in the case of any Subsequent Guarantors), the
Guarantee of each Guarantor in respect of the Securities shall be set forth in
Section 16.1 and shall be effective for all purposes upon authentication of a
particular Security by or on behalf of the Trustee, regardless of whether such
authentication occurs prior to a Subsequent Guarantor's execution of the
required supplemental indenture, and shall not require any Guarantor's
endorsement on the Securities.
Section 16.3. Termination of Guarantees.
The Guarantee of any Guarantor (including the Initial Guarantors), and
the provisions of any supplemental indenture with respect to a Guarantee by
such Guarantor and this Indenture with respect to such Guarantor, shall be
released, terminated and of no further force and effect, without further action
by any party, immediately upon the release or termination of such Guarantor's
guarantee of indebtedness under all Credit Agreements to which it is a party.
* * * * *
92
<PAGE> 99
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.
COX RADIO, INC.,
As Company
By
---------------------------
Name:
Title:
WSB, INC.,
As Initial Guarantor
By
---------------------------
Name:
Title:
WHIO INC.,
As Initial Guarantor
By
---------------------------
Name:
Title:
THE BANK OF NEW YORK,
As Trustee
By
---------------------------
Name:
Title:
93
<PAGE> 1
EXHIBIT 4.5
FORM OF 6.250% SENIOR NOTES DUE 2003
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY (AS
DEFINED IN THE INDENTURE) OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS GLOBAL SECURITY
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY, OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY, ANY
GUARANTOR (AS DEFINED IN THE INDENTURE) OR ANY AFFILIATE OF THE COMPANY OR ANY
GUARANTOR WAS THE OWNER OF THIS SECURITY OR ANY PREDECESSOR OF THIS SECURITY,
ONLY: (A) TO THE COMPANY OR ANY GUARANTOR, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
COMPANY, THE GUARANTORS AND THE TRUSTEE HEREINAFTER REFERRED TO PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE
18
<PAGE> 2
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, (II) PURSUANT TO CLAUSE
(D) TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUSTEE A LETTER FROM THE
TRANSFEREE SUBSTANTIALLY IN THE FORM OF APPENDIX A TO THE INDENTURE AND (III) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. PRIOR TO REGISTRATION, THIS SECURITY WILL BE ISSUED
AND MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL
MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF LESS THAN
$100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER, ANY SUCH
PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER FOR ANY PURPOSE,
INCLUDING BUT NOT LIMITED TO THE RECEIPT OF PAYMENTS HEREON, AND SUCH PURPORTED
TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER HEREIN.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT, DATED AS OF MAY 26, 1998 (THE
"REGISTRATION RIGHTS AGREEMENT"), AMONG THE COMPANY, THE GUARANTORS AND THE
INITIAL PURCHASERS NAMED THEREIN.
19
<PAGE> 3
No. R-1 $100,000,000
CUSIP No. 224051 AA0
COX RADIO, INC.
6.250% Note due 2003
Cox Radio, Inc., a Delaware corporation (hereinafter called the "Company", which
term includes any successor corporation under the Indenture), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of One Hundred Million Dollars ($100,000,000) on May 15, 2003,
unless redeemed prior thereto in accordance with the provisions set forth
herein, and to pay interest on the outstanding principal amount from May 26,
1998 or from the most recent date to which interest has been paid or duly
provided for, semiannually on May 15 and November 15 in each year, commencing
November 15, 1998 (each, an "Interest Payment Date"), at the rate of 6.250% per
annum (or 6.500% per annum under certain circumstances specified in the
Registration Rights Agreement), until the principal hereof is paid or duly made
available for payment. Interest on this Note shall be calculated on the basis of
a 360-day year consisting of twelve 30-day months. The interest 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 (the "Holder") 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, which shall be the April
30 or October 31 (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date. Any such interest which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder hereof on the
relevant Regular Record Date by virtue of having been such Holder, 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 for
the payment of such Defaulted Interest to be fixed by the Company, notice
whereof shall be given to the Holders of the Notes (as defined below) 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 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.
Payment of the principal of, and premium and interest on, this Note will be made
in immediately available funds at the office or agency of the Company maintained
for that purpose in The Borough of Manhattan, The City of New York, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
This Note is one of a duly authorized series of debt securities of the Company
(herein called the "Securities") issued and to be issued in one or more series
under an Indenture, dated as of May 26, 1998 (herein called, together with all
indentures supplemental thereto, the "Indenture"), between the Company, the
Guarantors and The Bank of New York, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Guarantors, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series designated as the
"6.250% Notes due 2003" (the "Notes"), limited (subject to exceptions provided
in the Indenture) to the aggregate principal amount specified in the Officers'
Certificate dated May 26, 1998 establishing the terms of the Notes pursuant to
the Indenture. The Notes will be entitled to the benefits of the Guarantees (as
defined in the Indenture) of the Guarantors, upon the terms specified in the
Indenture. This Note will be redeemable, at the option of the Company, in whole
at any time or in part from time to time, at a redemption price equal to the
greater of (i) 100% of the principal amount to be redeemed and (ii) the sum, as
determined by the Quotation Agent (as defined below), of the present values of
the principal amount to be redeemed and the remaining scheduled payments of
interest thereon from the redemption date to May 15, 2003 (the "Remaining
Life"), discounted on a semiannual basis (assuming a 360-day year consisting of
30-day months) at the Treasury Rate (as defined below) plus 10 basis points,
plus accrued interest thereon to the date of redemption. "Comparable Treasury
Issue" means the United States Treasury security selected by the Quotation Agent
as having a maturity comparable to the Remaining Life that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity with the
Remaining Life.
20
<PAGE> 4
"Comparable Treasury Price" means, with respect to any redemption date, the
average of five Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or, if the Trustee obtains fewer than three such Reference Treasury
Dealer Quotations, the average of all such quotations.
"Quotation Agent" means the Reference Treasury Dealer appointed by the Company.
"Reference Treasury Dealer" means: (i) NationsBanc Montgomery Securities LLC,
Chase Securities Inc. and J.P. Morgan Securities Inc. and their respective
successors; provided, however, that if the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury Dealer,
and (ii) any other Primary Treasury Dealer selected by the Company. "Reference
Treasury Dealer Quotations" means, with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Trustee
by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per annum
equal to the semi-annual yield to maturity of the Comparable Treasury Issue,
calculated on the third Business Day preceding such redemption date using a
price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such redemption
date.
If an Event of Default with respect to the Notes shall occur and be continuing,
the principal of the Notes may be declared due and payable, and in certain cases
shall automatically be accelerated, in the manner and with the effect provided
in the Indenture.
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 Guarantors and the rights of the Holders of the Securities of
each series issued under the Indenture at any time by the Company, the
Guarantors and the Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time Outstanding
of each series affected thereby. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities of any 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 Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note(s) issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note or such Note(s).
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 and interest on this
Note, at the times, place and rate, and in the coin or currency, herein and in
the Indenture prescribed. The Notes are issuable only in registered form without
coupons in the denominations specified in the Officers' Certificate dated May
26, 1998 establishing the terms of the Notes, all as more fully provided in the
Indenture and such Officers' Certificate.
As provided in the Indenture and subject to certain limitations set forth
therein and in this Note, the transfer of this Note may be registered on the
Security Register upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for the purpose in any place
where the principal of and premium and interest on this Note 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 by his attorney duly authorized in writing, and thereupon one
or more new Notes of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
As provided in the Indenture, and subject to certain limitations set forth
therein and in this Note, the Notes are exchangeable for a like aggregate
principal amount of Notes in different authorized denominations, as requested by
the Holders surrendering the same.
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, other than in
certain cases provided in the Indenture.
Prior to due presentment of this Note for registration of transfer, the Company,
the Guarantors, the Trustee and any agent of the Company, the Guarantors or the
Trustee may treat the Person in whose name this Note is registered as
21
<PAGE> 5
the owner hereof for all purposes, whether or not this Note be overdue, and none
of the Company, the Guarantors, the Trustee or any such agent shall be affected
by notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be discharged from
its obligations with respect to the Notes (subject to certain exceptions) or
(ii) the Company may be released from its obligation under specified covenants
and agreements in the Indenture, in each case if the Company irrevocably
deposits with the Trustee money or U.S. Government Obligations sufficient to pay
and discharge the entire indebtedness on all Notes and satisfies certain other
conditions, all as more fully provided in the Indenture.
This Note shall be governed by and construed in accordance with the laws of the
State of New York. All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee under the Indenture by the manual signature of one of its
authorized signatories, this Note shall not be entitled to any benefits under
the Indenture or the Guarantees or be valid or obligatory for any purpose.
22
<PAGE> 6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
[Seal] COX RADIO, INC.
Attest: By:
-------------------------- ----------------------------
Name: Name:
Title: Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
Dated: May 26, 1998 THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------------
Authorized Signatory
23
<PAGE> 7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM --- as tenants in common UNIF GIFT MIN ACT---______ Custodian _____
TEN ENT --- as tenants by the entireties (Cust) (Minor)
JT TEN --- as joint tenants with right of
survivorship and not as tenants Under Uniform Gifts to Minors
in common Act
-------------------------
(State)
Additional abbreviations may also be used though not in the above list.
---------------------------------
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- -------------------------------------------------------------
- -------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- --------------------------------------------------------------------------------
The within Note and all rights thereunder, hereby irrevocably constituting and
appointing.
- --------------------------------------------------------------------------------
To transfer said Note on the books of the Company with full power of
substitution in the premises.
Dated:
-------------------------------------------------------------------------
Notice: The signature to this assignment must correspond with the name
as it appears upon the face of the within Note in every particular,
without alteration or enlargement or any change whatever.
CERTIFICATE OF TRANSFER
In connection with any transfer of this Note occurring prior to the Resale
Restriction Termination Date, the undersigned confirms that this Note is being
transferred:
CHECK ONE BOX BELOW
(1) -- exchanged for the undersigned's own account without
transfer; or
(2) -- transferred pursuant to and in compliance with Rule
144A under the Securities Act; or
(3) -- transferred to an institutional "accredited investor"
within the meaning of subparagraph (a)(1), (2), (3)
or (7) of Rule 501 under the Securities Act of 1933
that is acquiring this Note for its own account, or
for the account of such an institutional "accredited
investor," for investment purposes and not with a
view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act; or
(4) -- transferred pursuant to another available exemption
from the registration requirements of the Securities
Act; or
(5) -- transferred pursuant to an effective registration
statement; or
(6) -- transferred to the Company or a Guarantor.
24
<PAGE> 8
Unless one of the boxes is checked, the Trustee will refuse to register this
Note in the name of any Person other than the Holder hereof; provided, however,
that (i) if box (3) or (4) is checked, the Trustee may require, prior to
registering any transfer of this Note, the Trustee, the Company or a Guarantor
may require a legal opinion, certifications and/or other information to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act,
(ii) if box (2) is checked, the transferee must also certify that it is a
"qualified institutional buyer" (as defined in Rule 144A) acquiring this Note
for its own account or for the account of another qualified institutional buyer
over which it exercises sole investment discretion and it is aware that the
Holder is relying upon the exemption from registration afforded by Rule 144A in
respect of the Holder's transfer of this Note to it, (iii) if box (3) is
checked, the transferee must also provide to the Trustee an Accredited Investor
Letter in the form attached as Appendix A to the Indenture or (iv) after the
date that a registration statement has been filed and so long as such
registration statement continues to be effective, only then may the Trustee
permit transfers for which box (5) has been checked.
----------------------------------
Signature
25
<PAGE> 1
EXHIBIT 4.6
FORM OF 6.375% SENIOR NOTES DUE 2005
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY (AS
DEFINED IN THE INDENTURE) OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS GLOBAL SECURITY
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY, OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY, ANY GUARANTOR (AS DEFINED IN
THE INDENTURE) OR ANY AFFILIATE OF THE COMPANY OR ANY GUARANTOR WAS THE OWNER OF
THIS SECURITY OR ANY PREDECESSOR OF THIS SECURITY, ONLY: (A) TO THE COMPANY OR
ANY GUARANTOR, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE RIGHT OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE HEREINAFTER
REFERRED TO PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D)
OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR
26
<PAGE> 2
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, (II) PURSUANT TO CLAUSE (D) TO
REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUSTEE A LETTER FROM THE TRANSFEREE
SUBSTANTIALLY IN THE FORM OF APPENDIX A TO THE INDENTURE AND (III) IN EACH OF
THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
PRIOR TO REGISTRATION, THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS
THEREOF. ANY ATTEMPTED TRANSFER OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID
AND OF NO LEGAL EFFECT WHATSOEVER, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED
NOT TO BE THE HOLDER FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT
OF PAYMENTS HEREON, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO
INTEREST WHATSOEVER HEREIN.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT, DATED AS OF MAY 26, 1998 (THE
"REGISTRATION RIGHTS AGREEMENT"), AMONG THE COMPANY, THE GUARANTORS AND THE
INITIAL PURCHASERS NAMED THEREIN.
27
<PAGE> 3
No. R-1 $100,000,000
CUSIP No. 224051 AD4
COX RADIO, INC.
6.375% Note due 2005
Cox Radio, Inc., a Delaware corporation (hereinafter called the "Company", which
term includes any successor corporation under the Indenture), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of One Hundred Million Dollars ($100,000,000) on May 15, 2005,
unless redeemed prior thereto in accordance with the provisions set forth
herein, and to pay interest on the outstanding principal amount from May 26,
1998 or from the most recent date to which interest has been paid or duly
provided for, semiannually on May 15 and November 15 in each year, commencing
November 15, 1998 (each, an "Interest Payment Date"), at the rate of 6.375% per
annum (or 6.625% per annum under certain circumstances specified in the
Registration Rights Agreement), until the principal hereof is paid or duly made
available for payment. Interest on this Note shall be calculated on the basis of
a 360-day year consisting of twelve 30-day months. The interest 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 (the "Holder") 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, which shall be the April
30 or October 31 (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date. Any such interest which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder hereof on the
relevant Regular Record Date by virtue of having been such Holder, 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 for
the payment of such Defaulted Interest to be fixed by the Company, notice
whereof shall be given to the Holders of the Notes (as defined below) 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 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.
Payment of the principal of, and premium and interest on, this Note will be
made in immediately available funds at the office or agency of the Company
maintained for that purpose in The Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
This Note is one of a duly authorized series of debt securities of the Company
(herein called the "Securities") issued and to be issued in one or more series
under an Indenture, dated as of May 26, 1998 (herein called, together with all
indentures supplemental thereto, the "Indenture"), between the Company, the
Guarantors and The Bank of New York, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Guarantors, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series designated as the
"6.375% Notes due 2005" (the "Notes"), limited (subject to exceptions provided
in the Indenture) to the aggregate principal amount specified in the Officers'
Certificate dated May 26, 1998 establishing the terms of the Notes pursuant to
the Indenture. The Notes will be entitled to the benefits of the Guarantees (as
defined in the Indenture) of the Guarantors, upon the terms specified in the
Indenture. This Note will be redeemable, at the option of the Company, in whole
at any time or in part from time to time, at a redemption price equal to the
greater of (i) 100% of the principal amount to be redeemed and (ii) the sum, as
determined by the Quotation Agent (as defined below), of the present values of
the principal amount to be redeemed and the remaining scheduled payments of
interest thereon from the redemption date to May 15, 2005 (the "Remaining
Life"), discounted on a semiannual basis (assuming a 360-day year consisting of
30-day months) at the Treasury Rate (as defined below) plus 15 basis points,
plus accrued interest thereon to the date of redemption. "Comparable Treasury
Issue" means the United States Treasury security selected by the Quotation Agent
as having a maturity comparable to the Remaining Life that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity with the
Remaining Life.
28
<PAGE> 4
"Comparable Treasury Price" means, with respect to any redemption date, the
average of five Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or, if the Trustee obtains fewer than three such Reference Treasury
Dealer Quotations, the average of all such quotations.
"Quotation Agent" means the Reference Treasury Dealer appointed by the Company.
"Reference Treasury Dealer" means: (i) NationsBanc Montgomery Securities LLC,
Chase Securities Inc. and J.P. Morgan Securities Inc. and their respective
successors; provided, however, that if the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury Dealer,
and (ii) any other Primary Treasury Dealer selected by the Company. "Reference
Treasury Dealer Quotations" means, with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Trustee
by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per annum
equal to the semi-annual yield to maturity of the Comparable Treasury Issue,
calculated on the third Business Day preceding such redemption date using a
price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such redemption
date. If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable, and in
certain cases shall automatically be accelerated, in the manner and with the
effect provided in the Indenture.
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 Guarantors and the rights of the Holders of the Securities of
each series issued under the Indenture at any time by the Company, the
Guarantors and the Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time Outstanding
of each series affected thereby. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities of any 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 Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note(s) issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note or such Note(s).
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 and interest on this
Note, at the times, place and rate, and in the coin or currency, herein and in
the Indenture prescribed. The Notes are issuable only in registered form without
coupons in the denominations specified in the Officers' Certificate dated May
26, 1998 establishing the terms of the Notes, all as more fully provided in the
Indenture and such Officers' Certificate.
As provided in the Indenture and subject to certain limitations set forth
therein and in this Note, the transfer of this Note may be registered on the
Security Register upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for the purpose in any place
where the principal of and premium and interest on this Note 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 by his attorney duly authorized in writing, and thereupon one
or more new Notes of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
As provided in the Indenture, and subject to certain limitations set forth
therein and in this Note, the Notes are exchangeable for a like aggregate
principal amount of Notes in different authorized denominations, as requested by
the Holders surrendering the same.
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, other than in
certain cases provided in the Indenture.
Prior to due presentment of this Note for registration of transfer, the
Company, the Guarantors, the Trustee and any agent of the Company, the
Guarantors or the Trustee may treat the Person in whose name this Note is
registered as
29
<PAGE> 5
the owner hereof for all purposes, whether or not this Note be overdue, and
none of the Company, the Guarantors, the Trustee or any such agent shall be
affected by notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be discharged
from its obligations with respect to the Notes (subject to certain exceptions)
or (ii) the Company may be released from its obligation under specified
covenants and agreements in the Indenture, in each case if the Company
irrevocably deposits with the Trustee money or U.S. Government Obligations
sufficient to pay and discharge the entire indebtedness on all Notes and
satisfies certain other conditions, all as more fully provided in the
Indenture.
This Note shall be governed by and construed in accordance with the laws of the
State of New York.
All terms used in this Note which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee under the Indenture by the manual signature of one of its
authorized signatories, this Note shall not be entitled to any benefits under
the Indenture or the Guarantees or be valid or obligatory for any purpose.
30
<PAGE> 6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
[Seal] COX RADIO, INC.
Attest:__________________________ By:__________________________
Name: Name:
Title: Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
Dated: May 26, 1998 THE BANK OF NEW YORK,
as Trustee
By: _______________________________
Authorized Signatory
31
<PAGE> 7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
<TABLE>
<S> <C> <C> <C>
TEN COM --- as tenants in common UNIF GIFT MIN ACT---______ Custodian _____
TEN ENT --- as tenants by the entireties (Cust) (Minor)
JT TEN --- as joint tenants with right of survivorship Under Uniform Gifts to Minors
and not as tenants in common Act__________________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
---------------------------------
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- -------------------------------------------------------------------------------
The within Note and all rights thereunder, hereby irrevocably constituting and
appointing.
- -------------------------------------------------------------------------------
To transfer said Note on the books of the Company with full power of
substitution in the premises.
Dated:
Notice: The signature to this assignment must correspond with the name
as it appears upon the face of the within Note in every particular,
without alteration or enlargement or any change whatever.
32
<PAGE> 8
CERTIFICATE OF TRANSFER
In connection with any transfer of this Note occurring prior to the Resale
Restriction Termination Date, the undersigned confirms that this Note is being
transferred:
CHECK ONE BOX BELOW
(1) -- exchanged for the undersigned's own
account without transfer; or
(2) -- transferred pursuant to and in
compliance with Rule 144A under the Securities
Act; or
(3) -- transferred to an institutional
"accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501
under the Securities Act of 1933 that is acquiring
this Note for its own account, or for the account of
such an institutional "accredited investor," for
investment purposes and not with a view to, or for
offer or sale in connection with, any distribution
in violation of the Securities Act; or
(4) -- transferred pursuant to another
available exemption from the registration
requirements of the Securities Act; or
(5) -- transferred pursuant to an effective
registration statement; or
(6) -- transferred to the Company or a
Guarantor.
Unless one of the boxes is checked, the Trustee will refuse to register this
Note in the name of any Person other than the Holder hereof; provided, however,
that (i) if box (3) or (4) is checked, the Trustee may require, prior to
registering any transfer of this Note, the Trustee, the Company or a Guarantor
may require a legal opinion, certifications and/or other information to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act,
(ii) if box (2) is checked, the transferee must also certify that it is a
"qualified institutional buyer" (as defined in Rule 144A) acquiring this Note
for its own account or for the account of another qualified institutional buyer
over which it exercises sole investment discretion and it is aware that the
Holder is relying upon the exemption from registration afforded by Rule 144A in
respect of the Holder's transfer of this Note to it, (iii) if box (3) is
checked, the transferee must also provide to the Trustee an Accredited Investor
Letter in the form attached as Appendix A to the Indenture or (iv) after the
date that a registration statement has been filed and so long as such
registration statement continues to be effective, only then may the Trustee
permit transfers for which box (5) has been checked.
-------------------------------------
Signature
<PAGE> 1
Exhibit 11
STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30, SIX MONTHS ENDED JUNE 30,
--------------------------- -------------------------
1998 1997 1998 1997
---- ---- ---- ----
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
NET INCOME $ 6,345 $ 3,937 $ 9,120 $ 38,140
========= ========= ========= =========
BASIC EPS
Weighted-average common shares outstanding 28,448 28,335 28,438 28,324
========= ========= ========= =========
Basic net income per common share $ .22 $ .14 $ .32 $ 1.35
========= ========= ========= =========
DILUTED EPS
Weighted-average common shares outstanding 28,448 28,335 28,438 28,324
Shares issuable on exercise of dilutive options 692 641 692 641
Shares assumed to be purchased with proceeds of options (377) (562) (395) (602)
--------- --------- --------- ---------
Shares applicable to diluted EPS 28,763 28,414 28,735 28,363
========= ========= ========= =========
Diluted net income per common share $ .22 $ .14 $ .32 $ 1.34
========= ========= ========= =========
</TABLE>
2
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUN-30-1998
<CASH> 7,120
<SECURITIES> 0
<RECEIVABLES> 58,224
<ALLOWANCES> (2,139)
<INVENTORY> 0
<CURRENT-ASSETS> 68,415
<PP&E> 90,488
<DEPRECIATION> (40,178)
<TOTAL-ASSETS> 735,731
<CURRENT-LIABILITIES> 31,908
<BONDS> 300,375
0
0
<COMMON> 28,452
<OTHER-SE> 268,809
<TOTAL-LIABILITY-AND-EQUITY> 735,731
<SALES> 0
<TOTAL-REVENUES> 121,221
<CGS> 0
<TOTAL-COSTS> 80,423
<OTHER-EXPENSES> 14,886
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7,878
<INCOME-PRETAX> 18,095
<INCOME-TAX> 8,975
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 9,120
<EPS-PRIMARY> 0.32
<EPS-DILUTED> 0.32
</TABLE>
