<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 2000
REGISTRATION NOS. 333-
333- -01
333- -02
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
---------------------
COX RADIO, INC.
COX RADIO TRUST I
COX RADIO TRUST II
(Exact Name of Registrants as Specified in Their Charters)
---------------------
<TABLE>
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DELAWARE 58-1620022
DELAWARE 58-2533490
DELAWARE 58-2533488
(States or Other Jurisdictions of Incorporation or (I.R.S. Employer Identification Nos.)
Organization)
</TABLE>
1400 LAKE HEARN DRIVE
ATLANTA, GEORGIA 30319
(404) 843-5000
(Address, Including Zip Code and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
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<TABLE>
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Please address a copy of all communications to:
MARITZA C. PICHON STUART A. SHELDON, ESQ.
CHIEF FINANCIAL OFFICER DOW, LOHNES & ALBERTSON, PLLC
COX RADIO, INC. 1200 NEW HAMPSHIRE AVENUE, NW
1400 LAKE HEARN DRIVE WASHINGTON, D.C. 20036-6802
ATLANTA, GEORGIA 30319 (202) 776-2000
(404) 843-5000
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent For
Service)
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
by market conditions.
---------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
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AGGREGATE AMOUNT PROPOSED MAXIMUM
TITLE OF EACH CLASS OF TO BE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED(1) REGISTERED(1)(2) OFFERING PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C>
Class A common stock, par value $1.00 per share.............
Rights to Purchase Class A Common Stock, preferred stock or
debt securities...........................................
Warrants to Purchase Class A Common Stock preferred stock or
debt securities...........................................
Preferred stock, par value $1.00 per share.................. $750,000,000 $750,000,000 $198,000
Stock Purchase Contracts of Cox Radio, Inc..................
Stock Purchase Units of Cox Radio, Inc......................
Debt Securities of Cox Radio, Inc...........................
Trust Preferred Securities of Cox Radio Trust I.............
Trust Preferred Securities of Cox RadioTrust II.............
Junior Subordinated Debentures of Cox Radio, Inc.(3)........
Cox Radio, Inc. guarantees with respect to the Trust
Preferred Securities(4)...................................
Total....................................................... $750,000,000 $750,000,000 $198,000
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</TABLE>
(1) Such indeterminate number or amount of Class A common stock, preferred
stock, stock purchase contracts, stock purchase units, debt securities and
junior subordinated debentures of Cox Radio, Inc., and trust preferred
securities of Cox Radio Trust I and Cox Radio Trust II, as may from time to
time be issued at indeterminate prices, with an aggregate initial offering
price not to exceed $750,000,000 or the equivalent thereof in one or more
foreign currencies, foreign currency units or composite currencies.
Securities registered hereunder may be sold separately, together or as units
with other securities registered hereunder.
(2) United States dollars or the equivalent thereof in one or more foreign
currencies, foreign currency units or composite currencies estimated in
accordance with Rule 457(o) under the Securities Act of 1933, as amended.
Pursuant to Rule 457(o), which permits the registration fee to be calculated
on the basis of the maximum offering price of all the securities listed, the
table does not specify by each class information as to the amount to be
registered, proposed maximum offering price per unit or proposed maximum
aggregate offering price.
(3) Junior subordinated debentures or other debt securities may be issued and
sold to Cox Radio Trust I or Cox Radio Trust II in connection with the
issuance of trust preferred securities by Cox Radio Trust I or Cox Radio
Trust II, in which event such junior subordinated debentures or other debt
securities may later be distributed to holders of the trust preferred
securities upon dissolution and liquidation of Cox Radio Trust I or Cox
Radio Trust II. No separate consideration will be received for the junior
subordinated debentures or other debt securities of Cox Radio, Inc.
distributed upon any liquidation of Cox Radio Trust I or Cox Radio Trust II.
(4) Cox Radio, Inc. is also registering under this Registration Statement all
other obligations that it may have with respect to trust preferred
securities issued by Cox Radio Trust I and Cox Radio Trust II. No separate
consideration will be received for the Cox Radio, Inc. guarantees or any
other such obligations.
---------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
THE INFORMATION IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. COX RADIO AND THE COX RADIO TRUSTS MAY NOT SELL THESE SECURITIES
UNTIL THE SECURITIES AND EXCHANGE COMMISSION DECLARES THE REGISTRATION
STATEMENT EFFECTIVE. THIS PRELIMINARY PROSPECTUS IS NOT AN OFFER TO SELL
THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN
ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED APRIL 21, 2000
PROSPECTUS
$750,000,000
COX RADIO, INC.
CLASS A COMMON STOCK
PREFERRED STOCK
SUBSCRIPTION RIGHTS WARRANTS
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
DEBT SECURITIES
JUNIOR SUBORDINATED DEBENTURES
COX RADIO TRUST I
COX RADIO TRUST II
TRUST PREFERRED SECURITIES FULLY AND UNCONDITIONALLY GUARANTEED
TO THE EXTENT PROVIDED IN THIS PROSPECTUS BY
COX RADIO, INC.
------------------------
This prospectus is part of a shelf registration statement which Cox Radio
and the Cox Radio Trusts have filed with the Securities and Exchange Commission.
Under the shelf registration statement, Cox Radio may offer: shares of Class A
common stock, shares of preferred stock; stock purchase contracts to purchase
shares of Class A common stock; stock purchase units; unsecured debentures,
notes, bonds or other evidences of indebtedness; and warrants or subscription
rights to purchase shares of Class A common stock, preferred stock or debt
securities; and the Cox Radio Trusts may offer trust preferred securities, all
of which securities combined, have an aggregate initial public offering price of
$750.0 million, including the U.S. dollar equivalent if the initial public
offering is denominated in one or more foreign currencies, foreign currency
units or composite currencies.
Under the shelf registration process, we may sell the securities from time
to time in one or more separate offerings, in amounts, at prices and on terms to
be determined at the time of sale. Cox Radio's debt securities may be issuable
in global form, in registered form without coupons attached, or in bearer form
with or without coupons attached.
Our Class A common stock is listed on the New York Stock Exchange under the
symbol "CXR."
In addition to Class A common stock, Cox Radio also has shares of Class B
common stock issued and outstanding. The rights of holders of Class A common
stock and Class B common stock differ with respect to some aspects of
convertibility and voting. Cox Radio will not offer or sell any shares of Class
B common stock using this prospectus.
This prospectus provides a general description of the securities Cox Radio
and the Cox Radio Trusts may offer. Each time Cox Radio sells a particular
series of debt securities or preferred stock, shares of Class A common stock,
stock purchase contracts, stock purchase units, warrants or subscription rights
or a Cox Radio Trust sells trust preferred securities, it will provide a
prospectus supplement which will contain the specific terms of the securities
being offered at that time. Unless otherwise specified in the prospectus
supplement, the debt securities will be senior debt securities of Cox Radio.
The prospectus supplement may add, update or change information contained
in the prospectus. You should read both this prospectus and the prospectus
supplement in conjunction with the additional information described under the
headings "Where You Can Find More Information" and "Information Incorporated by
Reference."
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR
DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS
PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this prospectus is , 2000.
<PAGE> 3
TABLE OF CONTENTS
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PAGE
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Cox Radio, Inc.............................................. 1
The Cox Radio Trusts........................................ 2
Use of Proceeds............................................. 3
Ratio of Earnings to Fixed Charges.......................... 3
Description of Capital Stock................................ 4
Description of the Debt Securities.......................... 6
Description of Junior Subordinated Debentures............... 20
Description of Trust Preferred Securities................... 29
Description of Preferred Securities Guarantees.............. 38
Relationship Among the Trust Preferred Securities, the
Corresponding Junior Subordinated Debentures or other Debt
Securities and the Preferred Securities Guarantees........ 41
Description of Stock Purchase Contracts and Stock Purchase
Units..................................................... 42
Plan of Distribution........................................ 43
Legal Matters............................................... 43
Experts..................................................... 44
Where You Can Find More Information......................... 44
Information Incorporated by Reference....................... 44
</TABLE>
---------------------
The principal executive offices of Cox Radio, Inc. and the Cox Radio Trusts
are located at 1400 Lake Hearn Drive, Atlanta, Georgia 30319, and the telephone
number is (404) 843-5000.
---------------------
This prospectus, as well as information incorporated by reference into this
prospectus, includes forward-looking statements within the meaning of Section
21E of the Securities Exchange Act of 1934, as amended, and Section 27A of the
Securities Act of 1933, as amended. We have based these statements on our
current expectations or projections about future events and on assumptions we
have made. These forward-looking statements are subject to certain risks and
uncertainties which could cause actual results or events to differ materially
from those we anticipate or project. Prospective purchasers should not place
undue reliance on these forward-looking statements. We undertake no obligation
to update or revise any forward-looking statements as a result of new
information, future events or otherwise.
---------------------
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized any person to provide you
with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not making an offer
to sell these securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this prospectus,
as well as information we previously filed with the Securities and Exchange
Commission and incorporated by reference, is accurate as of the date on the
front cover of this prospectus only. Our business, financial condition, results
of operations and prospects may have changed since that date.
i
<PAGE> 4
COX RADIO, INC.
Cox Radio is one of the largest radio broadcasting companies in the U.S. At
present, we are focused primarily on maximizing the revenues and broadcast cash
flow of our radio stations by operating and developing clusters of stations in
demographically attractive and rapidly growing markets.
As a result of our management, programming and sales efforts, our radio
stations are characterized by strong ratings and above average power ratios. In
addition, we have a track record of acquiring, repositioning and improving the
operating performance of previously underperforming stations. Our senior
operating management is comprised of five individuals with an average of over 26
years of experience in the radio broadcasting industry. We believe that our
experienced senior management team will be well positioned to manage larger
radio station clusters and take advantage of new opportunities arising in the
U.S. radio broadcasting industry.
Our stations are diversified in terms of format, target audience,
geographic location and stage of development. We believe that a number of our
stations have significant growth opportunities or turnaround potential and can
therefore be characterized as developing stations. We believe these stations can
achieve significant broadcast cash flow growth by employing our operating
strategy. We believe that our portfolio of stations in different stages of
development enables us to maximize our growth potential.
We operate our stations in clusters to:
- enhance net revenue growth by increasing the appeal of our radio stations
to advertisers and enabling our stations to compete more effectively with
other forms of advertising; and
- achieve operating efficiencies by consolidating broadcast facilities,
eliminating duplicative positions in management and production and
reducing overhead expenses.
In addition, we have demonstrated an ability to acquire underperforming
stations and develop them into ratings and revenue leaders. We have achieved
this through our management philosophy which emphasizes:
- market research and targeted programming;
- a customer-focused selling strategy; and
- marketing and promotional activities.
This management philosophy is designed and coordinated by our experienced senior
operating management and implemented on a local level by our station managers.
We invest significant resources to identify and train local managers who are
given:
- the responsibility for day-to-day operations of our stations; and
- the flexibility to develop policies that will improve station performance
and establish long-term relationships with advertisers and listeners.
During the last several years, we have implemented our clustering strategy
through the acquisition of radio stations in several existing markets, and we
intend to continue to make acquisitions in the markets in which we operate. In
the past, we have primarily acquired underperforming stations. We may also make
opportunistic acquisitions in additional markets in which we believe that we can
cost-effectively achieve a leading position in terms of audience and revenue
share. In evaluating acquisition opportunities in additional markets, we intend
to focus primarily on demographically attractive markets, such as those in the
Sunbelt, and markets ranked between 10 and 70 in terms of radio advertising
revenues. We believe that such markets offer the greatest potential for growth
relative to the cost of entry. We also believe that we will have the financial
resources and management expertise to continue to pursue our acquisition
strategy.
Cox Enterprises, Inc., a privately held corporation based in Georgia and
one of the largest media companies in the U.S., controls approximately 95.4% of
the voting power of Cox Radio. In addition to Cox Radio, Cox Enterprises
controls approximately 76.4% of the voting power of a publicly traded broadband
communications company, Cox Communications, Inc., and publishes, owns or
operates newspapers, television stations, Internet web sites and Manheim
Auctions, the world's largest auto auction operator.
1
<PAGE> 5
THE COX RADIO TRUSTS
Each Cox Radio Trust is a statutory business trust created under Delaware
law pursuant to:
1. a declaration of trust executed by Cox Radio as sponsor for each Cox
Radio Trust and by the initial trustees of such Cox Radio Trust; and
2. the filing of a certificate of trust with the Delaware Secretary of
State.
Each Cox Radio Trust exists for the exclusive purposes of:
- issuing and selling trust preferred securities representing undivided
beneficial interests in the assets of such Cox Radio Trust and trust
common securities representing undivided beneficial interests in the
assets of such Cox Radio Trust;
- using the proceeds from the sale of such trust securities to acquire a
series of corresponding junior subordinated debentures or other debt
securities of Cox Radio; and
- engaging in only those other activities necessary, advisable or
incidental to these purposes.
Cox Radio's junior subordinated debentures or other debt securities, as the
case may be, will be the sole assets of a Cox Radio Trust and, accordingly,
payments under the corresponding junior subordinated debentures or other debt
securities, as the case may be, will be the sole revenues of that Cox Radio
Trust.
All of the trust common securities of a Cox Radio Trust will be owned by
Cox Radio and will rank equally, and payments will be made on trust common
securities pro rata, with the trust preferred securities of such Cox Radio
Trust, except that upon the occurrence and continuance of an event of default
under the applicable declaration of trust resulting from an event of default
under the applicable indenture, the rights of Cox Radio as the trust common
securities holder to payments in respect of distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the rights of the
holders of trust preferred securities of such Cox Radio Trust. See "Description
of Trust Preferred Securities -- Subordination of Trust Common Securities." Cox
Radio will acquire trust common securities of each Cox Radio Trust in an
aggregate liquidation amount equal to at least 3% of the total capital of that
Cox Radio Trust. Each Cox Radio Trust will dissolve on the date specified in the
applicable prospectus supplement, but may dissolve earlier as provided in the
applicable declaration of trust.
Each Cox Radio Trust's business and affairs are conducted by its trustees
who are appointed by Cox Radio as the trust common securities holder. Unless
otherwise specified in the prospectus supplement, the issuer trustees for each
Cox Radio Trust will be The Bank of New York, as property trustee, The Bank of
New York (Delaware), as Delaware trustee, and three individual trustees, which
are referred to as administrative trustees, who are officers or employees of Cox
Radio. The Bank of New York, as property trustee, will act as sole indenture
trustee under each declaration of trust. The Bank of New York will also act as
indenture trustee under any preferred securities guarantee and the junior
subordinated debenture indenture. See "Description of Preferred Securities
Guarantees," "Description of Debt Securities" and "Description of Junior
Subordinated Debentures." The trust common securities holder of a Cox Radio
Trust or, if an event of default under the declaration of trust has occurred and
is continuing, the holders of a majority in liquidation amount of the trust
preferred securities of such Cox Radio Trust will be entitled to appoint, remove
or replace such Cox Radio Trust's property trustee and the Delaware trustee. In
no event will the holders of trust preferred securities have the right to vote
to appoint, remove or replace the administrative trustees; such voting rights
will be vested exclusively in Cox Radio as the trust common securities holder.
The duties and obligations of the trustees will be governed by the applicable
declaration of trust.
Cox Radio, as issuer of the corresponding junior subordinated debentures or
other debt securities, will pay all fees, expenses, debts and obligations, other
than payments in respect of trust securities, related to each Cox Radio Trust
and the offering of the trust preferred securities and will pay, directly or
indirectly, all ongoing costs, expenses and liabilities of each Cox Radio Trust,
other than payments in respect of trust securities.
2
<PAGE> 6
USE OF PROCEEDS
Unless we state otherwise in the accompanying prospectus supplement, we
intend to use the net proceeds from the sale of the securities offered in such
prospectus supplement for general corporate purposes, which may include
additions to working capital, repayment or redemption of existing indebtedness
and financing of capital expenditures and acquisitions. We may borrow additional
funds from time to time from public and private sources on both a long-term and
short-term basis and may sell commercial paper to fund our future capital and
working capital requirements in excess of internally generated funds.
The proceeds from the sale of trust preferred securities by a Cox Radio
Trust will be invested in either junior subordinated debentures or other debt
securities of Cox Radio. Except as may otherwise be described in the related
prospectus supplement, Cox Radio expects to use the net proceeds from the sale
of such junior subordinated debentures or other debt securities to the
applicable Cox Radio Trust for general corporate purposes. Any specific
allocation of the proceeds to a particular purpose that has been made at the
date of any prospectus supplement will be described therein.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of
Cox Radio for the periods indicated:
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YEAR ENDED DECEMBER 31,
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1995 1996 1997 1998 1999
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3.20x 5.86x 8.03x 3.38x 4.85x
</TABLE>
For purposes of this computation, earnings are defined as income before
income taxes and fixed charges excluding capitalized interest. Fixed charges are
the sum of:
- interest cost, including capitalized interest and amortization of debt
premiums, discounts and capitalization expenses related to indebtedness;
and
- estimated interest component of rent expense.
3
<PAGE> 7
DESCRIPTION OF CAPITAL STOCK
The following description of Cox Radio's capital stock sets forth general
terms and provisions of the particular issuance of capital stock to which any
prospectus supplement may relate. The prospectus supplement will describe the
particular terms of any sale of capital stock and the extent, if any, to which
such general provisions will not apply to such sale. The following description
also sets forth selected provisions of Cox Radio's certificate of incorporation
and bylaws. This description is a summary only and is qualified in its entirety
by Cox Radio's certificate of incorporation and bylaws, which are incorporated
as exhibits to our registration statement of which this prospectus is a part.
Cox Radio's certificate of incorporation currently authorizes it to issue
70,000,000 shares of Class A common stock, 45,000,000 shares of Class B common
stock and 5,000,000 shares of preferred stock.
As of February 29, 2000, there were outstanding 9,342,074 shares of Class A
common stock and 19,577,672 shares of Class B common stock.
The Cox Radio Board of Directors has approved an increase in the authorized
number of shares of Class A common stock, Class B common stock and preferred
stock and a three-for-one stock split of the outstanding shares of Class A
common stock and Class B common stock. There currently are no outstanding shares
of preferred stock. Cox Radio stockholders will vote on the proposed increase in
authorized shares of capital stock and the proposed stock split at the Cox Radio
annual meeting scheduled for May 11, 2000. If approved by stockholders, the
number of authorized shares of Class A common stock, Class B common stock and
preferred stock will be increased to 210,000,000 shares, 135,000,000 shares and
15,000,000 shares, respectively, and the stock split will be distributed on May
19, 2000 to stockholders of record on May 12, 2000. In giving effect to the
stock split, the par value of the Class A common stock, the Class B common stock
and the preferred stock will be reduced from $1.00 per share to $.33 per share
and the number of shares reserved for issuance under Cox Radio's various benefit
plans will triple. The stock split will not affect the proportionate voting
rights of stockholders.
COMMON STOCK
Except with respect to voting and convertibility, shares of Class A common
stock and shares of Class B common stock are identical in all respects.
Voting. Class A common stock holders are entitled to one vote per share,
while Class B common stock holders are entitled to ten votes per share. The
Class A common stock holders and the Class B common stock holders vote together
as a single class on all actions, except that the affirmative vote of the
holders of a majority of outstanding shares of Class A common stock and Class B
common stock voting separately as a class is required:
- to approve any amendment to Cox Radio's certificate of incorporation that
would alter or change the powers, preferences or special rights of such
class in a way that adversely affects the holders of such class; and
- to approve such other matters as may require a class vote under the
Delaware General Corporation Law.
Dividends and Other Distributions. Each share of common stock is equal in
respect of dividends and other distributions in cash, stock or property,
including distributions upon Cox Radio's liquidation or a sale of all or
substantially all of Cox Radio's assets. However, in the case of dividends or
other distributions payable on either class of common stock in shares of such
stock, including distributions pursuant to stock splits or dividends, only Class
A common stock will be distributed with respect to outstanding Class A common
stock, and only Class B common stock will be distributed with respect to
outstanding Class B common stock. Neither the Class A common stock nor the Class
B common stock will be split, divided or combined unless each other class is
proportionately split, divided or combined.
Cox Radio has never declared or paid cash dividends on its Class A common
stock and currently intends to retain any future earnings for use in developing
and operating its businesses. Accordingly, Cox Radio does not expect to pay cash
dividends on the Class A common stock in the foreseeable future.
4
<PAGE> 8
Convertibility of Class B Common Stock into Class A Common Stock. Cox
Enterprises holds all of the shares of Class B common stock currently
outstanding. Shares of the Class B common stock are convertible at any time, or
from time to time, at the Class B stock holder's option, into Class A common
stock on a share-for-share basis.
Liquidation, Dissolution or Winding Up. In the event of any liquidation,
dissolution or winding up of Cox Radio, whether voluntary or not, the Class A
common stock holders and the Class B common stock holders shall be entitled to
share ratably, according to their respective interests, in Cox Radio's assets
which remain after payment, or provision for payment, of Cox Radio's debts and
other liabilities and the preferential amounts due to the holders of any stock
ranking prior to the common stock in the distribution of assets.
PREFERRED STOCK
Cox Radio may issue preferred stock with such designations, powers,
preferences and other rights and qualifications, limitations and restrictions as
our board of directors may authorize, without further action by our
stockholders, including but not limited to:
- the distinctive designation of each series and the number of shares that
will constitute the series;
- the voting rights, if any, of shares of the series;
- the dividend rate on the shares of the series, any restriction,
limitation or condition upon the payment of dividends, whether dividends
will be cumulative and the dates on which dividends are payable;
- the prices at which, and the terms and conditions on which, the shares of
the series may be redeemed, if the shares are redeemable;
- the purchase or sinking fund provisions, if any, for the purchase or
redemption of shares of the series;
- any preferential amount payable upon shares of the series in the event of
the liquidation, dissolution or winding up of Cox Radio or the
distribution of its assets; and
- the prices or rates of conversion at which, and the terms and conditions
on which, the shares of such series may be converted into other
securities, if such shares are convertible.
TRANSFER AGENT
The transfer agent and registrar for the Class A common stock is First
Chicago Trust Company of New York.
5
<PAGE> 9
DESCRIPTION OF THE DEBT SECURITIES
GENERAL
The following description of the terms of the debt securities sets forth
selected general terms and provisions of the particular issuance of debt
securities to which any prospectus supplement may relate. The prospectus
supplement will describe the particular terms of any debt securities and the
extent, if any, to which such general provisions will not apply to those debt
securities.
The debt securities will be issued from time to time in series under an
indenture, dated as of May 26, 1998, between Cox Radio and The Bank of New York,
as trustee. The indenture was supplemented by a first supplemental indenture,
dated as of February 1, 1999, under which CXR Holdings, Inc., a Nevada
corporation and a wholly owned restricted subsidiary of Cox Radio, became a
guarantor of the debt securities of Cox Radio. A copy of the indenture, as
supplemented by the first supplemental indenture, is incorporated by reference
as an exhibit to the registration statement of which this prospectus is a part.
The indenture provides that Cox Radio may issue debt securities from time
to time in one or more series and does not limit the aggregate principal amount
of debt securities Cox Radio may issue. The following summary of selected
provisions of the indenture and the debt securities does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all the provisions of the indenture, including the definitions of selected terms
which it contains as well as those terms which the Trust Indenture Act of 1939,
as amended, requires be incorporated.
Cox Radio refers you to the prospectus supplement for the following terms
and other possible terms of each series of debt securities in respect of which
this prospectus is being delivered, to the extent such terms are applicable to
such debt securities:
- the classification, specific designation, date, aggregate principal
amount, purchase price and denomination of the debt securities;
- currency or units based on or relating to currencies in which such debt
securities are denominated and/or in which principal, premium, if any,
and/or interest will or may be payable;
- the formula, if any, upon which Cox Radio may determine from time to time
the principal amount of debt securities outstanding;
- any date of maturity, which may be fixed or extendible;
- the interest rate or rates or the method by which the interest rate or
rates will be determined, if any;
- the dates on which any interest will be payable, Cox Radio's right, if
any, to extend or defer the interest period and the duration of
extensions or deferrals;
- the place or places where the principal of, premium, if any, and interest
on the debt securities will be payable;
- any repayment, redemption, prepayment or sinking fund provisions and any
provisions related to the purchase of debt securities at the option of
the holders;
- whether the debt securities will be issuable in global form, and, if so,
the identity of the depositary, or in registered and/or bearer form and,
if bearer securities are issuable, any restrictions applicable to the
exchange of one form for another and to the offer, sale and delivery of
bearer securities;
- the terms, if any, on which debt securities may be converted into or
exchanged for stock or other securities of Cox Radio or other entities or
for cash, any specific terms relating to the adjustment of the conversion
or exchange terms, and the period during which debt securities may be so
converted or exchanged;
- any applicable United States federal income tax consequences, including
whether and under what circumstances Cox Radio will pay additional
amounts on debt securities held by a person who is
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not a U.S. person, as defined in the prospectus supplement, in respect of
any tax, assessment or governmental charge withheld or deducted and, if
so, whether Cox Radio will have the option to redeem debt securities
rather than pay such additional amounts;
- the subordination provisions, if any, relating to the debt securities;
and
- any other specific terms of the debt securities, including any additional
events of default or covenants provided for with respect to debt
securities, and any terms which may be required by or advisable under
applicable laws or regulations.
Holders may present debt securities for exchange, and holders of registered
debt securities may present them for transfer, in the manner, at the places and
subject to the restrictions set forth in the debt securities and the prospectus
supplement. Cox Radio will provide these services without charge, other than any
tax or other governmental charge payable in that connection, but subject to the
limitations provided in the indenture. Debt securities in bearer form and the
coupons, if any, pertaining to such debt securities will be transferable by
delivery.
Debt securities will bear interest at a fixed rate or a floating rate. Debt
securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate will be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any discounted debt securities or to certain debt
securities issued at par, which are treated as having been issued at a discount
for United States federal income tax purposes, will be described in the
accompanying prospectus supplement.
Cox Radio may issue debt securities from time to time, with the principal
amount or the amount of interest payable on any payment date to be determined by
reference to one or more currency exchange rates, commodity prices, equity
indices or other factors. Holders of these debt securities may receive a payment
of principal on any principal payment date, or a payment of interest on any
interest payment date, that is greater or less than the amount of principal or
interest otherwise payable on those dates, depending upon the value of the
applicable currency, commodity, equity index or other factor on those dates.
Information as to the methods Cox Radio will use to determine the amount of
principal or interest payable on any date, the currencies, commodities, equity
indices or other factors to which the amount payable on that date is linked and
certain additional tax considerations will be set forth in the applicable
prospectus supplement.
Unless Cox Radio indicates otherwise in the accompanying prospectus
supplement, the debt securities will be issued only in fully registered form,
without coupons, in denominations of $1,000 and integral multiples of $1,000.
Unless Cox Radio specifies otherwise in the prospectus supplement, the principal
amount of the debt securities will be payable at the corporate trust office of
the trustee in New York, New York. Holders may present the debt securities for
transfer or exchange at that office unless Cox Radio specifies otherwise in the
prospectus supplement, subject to the limitations provided in the indenture and
without any service charge, but Cox Radio may require payment of a sum
sufficient to cover any tax or other governmental charges payable.
CONCERNING THE TRUSTEE
The Bank of New York is the trustee under the indenture and has been
appointed by Cox Radio as registrar and paying agent with regard to the debt
securities. The trustee is a depositary for funds and performs other services
for, and transacts other banking business with, Cox Radio in the normal course
of business.
RANKING
Unless Cox Radio specifies otherwise in a prospectus supplement for a
particular series of debt securities, all series of debt securities will be
senior indebtedness of Cox Radio and will be direct, unsecured obligations,
ranking equally with all of Cox Radio's other unsecured and unsubordinated
obligations.
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GUARANTEES
The indenture requires Cox Radio to cause each of its subsidiaries that
guarantee, on the date of this prospectus or in the future, indebtedness under
Cox Radio's $300 million, five-year, senior, unsecured revolving credit
facility, dated as of March 7, 1997, which we refer to as the credit agreement,
and indebtedness under any future senior unsecured credit facility of Cox Radio,
to fully and unconditionally guarantee, as primary obligors and not merely as
sureties, under a guarantee on an unsubordinated, unsecured basis, the due and
punctual payment of the principal of, interest on and other amounts payable
under the debt securities, when and if the same shall become due and payable.
If, however, any guarantor subsidiary is released from its guarantee of
indebtedness under the credit agreement or a future credit facility, then such
subsidiary will also be immediately released from its obligations under its
guarantee without further action by any party.
Each guarantee will be limited to an amount not to exceed the maximum
amount that can be guaranteed by the applicable guarantor without rendering such
guarantee, as it relates to such guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting creditors' rights generally.
CERTAIN COVENANTS
The indenture contains covenants, including, among others, the following:
Limitation on liens. Cox Radio will not, and will not permit any
restricted subsidiary to, create, incur or assume any lien, other than permitted
liens, on restricted property incurred to secure the payment of Indebtedness of
Cox Radio or any restricted subsidiary, if, immediately after the creation,
incurrence or assumption of such lien, the aggregate outstanding principal
amount of all Indebtedness of Cox Radio and its restricted subsidiaries that is
secured by liens, other than permitted liens, on restricted property would
exceed the greater of:
- $30 million; or
- 15% of the aggregate outstanding principal amount of all Indebtedness of
Cox Radio and its restricted subsidiaries, whether or not so secured,
unless effective provision is made such that, at Cox Radio's determination, the
debt securities together with any other Indebtedness of equal ranking, whether
then existing or later created, are secured equally and ratably with, or prior
to, such Indebtedness, but only for as long as such Indebtedness is so secured.
The foregoing limitation does not apply to:
- liens existing on the date on which the first series of debt securities
is originally issued under the indenture, which we refer to as the
closing date;
- liens granted after the closing date on any assets or capital stock of
Cox Radio or its restricted subsidiaries in favor of the holders of the
debt securities;
- liens with respect to the assets of a restricted subsidiary granted by
such restricted subsidiary to Cox Radio or another restricted subsidiary
to secure Indebtedness owing to Cox Radio or such other restricted
subsidiary;
- liens securing Indebtedness permitted under the "Limitation on
Indebtedness of restricted subsidiaries" covenant;
- liens securing Indebtedness which is incurred to refinance secured
Indebtedness which is permitted to be incurred under the "Limitation of
Indebtedness of restricted subsidiaries" covenant; provided that such
liens do not extend to or cover any property or assets of Cox Radio or
any restricted subsidiary other than the property or assets securing the
Indebtedness being refinanced; or
- permitted liens.
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Limitation on indebtedness of restricted subsidiaries. Cox Radio 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:
- $30 million; or
- 15% of the aggregate outstanding principal amount of all Indebtedness of
Cox Radio and its restricted subsidiaries;
provided that, in any event, a restricted subsidiary may incur Indebtedness to
extend, renew or replace its own Indebtedness to the extent that the principal
amount of the Indebtedness so incurred does not exceed the level of the
principal amount of the Indebtedness immediately prior to such extension,
renewal or replacement plus any premium, accrued and unpaid interest or
capitalized interest payable on the previous amount.
Designation of subsidiaries. Cox Radio may designate a restricted
subsidiary as an unrestricted subsidiary or designate an unrestricted subsidiary
as a restricted subsidiary at any time, provided that:
- immediately after giving effect to such designation, the restricted
group's leverage ratio is not greater than 7:1 and Cox Radio and its
restricted subsidiaries are in compliance with the "Limitation on liens"
and "Limitation on Indebtedness of restricted subsidiaries" covenants;
and
- Cox Radio delivers an officers' certificate with respect to such
designation, to the trustee, within 75 days after the end of Cox Radio's
fiscal quarter in which it made such designation, or, in the case of a
designation made during the last fiscal quarter of Cox Radio's fiscal
year, within 120 days after the end of such fiscal year. The officers'
certificate shall state the effective date of such designation.
Mergers or sales of assets. The indenture provides that neither Cox Radio
nor any guarantor may merge into or consolidate with another entity or convey,
transfer or lease all or substantially all of its assets to another entity
unless either:
- Cox Radio or the guarantor is the surviving corporation; or
- the resulting, surviving or transferee entity is a corporation organized
under the laws of a state of the United States or the District of
Columbia and expressly assumes all of Cox Radio's obligations under the
debt securities and the indenture or all of the guarantor's obligations
under its guarantee and the indenture, as applicable; and
- immediately after and giving effect to such transaction, no event of
default has occurred.
The indenture does not contain any provisions affording debt securities
holders any additional protection in the event that Cox Radio enters into a
highly leveraged transaction.
DEFINITIONS
Asset acquisition means:
- an investment by Cox Radio or any of its restricted subsidiaries in any
other entity whereby such entity would become a restricted subsidiary or
would be merged into or consolidated with Cox Radio or any of its
restricted subsidiaries; or
- an acquisition by Cox Radio or any of its restricted subsidiaries of the
property and assets of any entity other than Cox Radio or any of its
restricted subsidiaries which property and assets constitute
substantially all of a division or line of business of such entity.
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Asset disposition means the sale or other disposition by Cox Radio or any
of its restricted subsidiaries, other than to Cox Radio or another restricted
subsidiary, of:
- all or substantially all of the capital stock of any restricted
subsidiary; or
- all or substantially all of the assets that constitute a division or line
of business of Cox Radio or any of its restricted subsidiaries.
Capital stock means, with respect to any entity, any and all shares,
interests, participations or other equivalents, however designated, whether
voting or non-voting, in equity of such entity, whether outstanding on the
closing date or issued after the closing date.
Capitalized lease means, as applied to any entity, any lease of any
property, whether real, personal or mixed, of which the discounted present value
of the rental obligations of such entity as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such entity.
Currency agreement means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement.
Default means any event which is, or after notice or passage of time or
both would be, an event of default.
GAAP means such accounting principles as are generally accepted in the
United States of America as of the date or time of any particular computation.
Indebtedness means, without duplication, with respect to any entity:
- any indebtedness of such entity for borrowed money or indebtedness of
such entity evidenced by a note, debenture or similar instrument,
including a purchase money obligation which was given in connection with
the acquisition of any property or assets, including securities;
- any guarantee by such entity of any indebtedness of others as described
in the preceding clause; and
- any amendment, extension, renewal or refunding of any such indebtedness
or guarantee.
The term Indebtedness excludes:
- any indebtedness of Cox Radio or of any its restricted subsidiaries to
Cox Radio or another restricted subsidiary;
- any guarantee by Cox Radio or any restricted subsidiary of indebtedness
of Cox Radio or another restricted subsidiary;
- trade accounts payable;
- 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 this money is held to secure the payment of such
interest;
- liabilities for federal, state, local or other taxes; and
- letters of credit, performance bonds and similar obligations issued in
favor of governmental or franchising authorities as a term of any
governmental franchise, license, permit or authorization held by such
entity or any of its subsidiaries.
The amount of Indebtedness of any entity at any date shall be the
outstanding balance at such date of all unconditional obligations 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 that time as determined in conformity with
GAAP.
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
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collar agreement, interest rate hedge agreement, option or future contract or
other similar agreement or arrangement.
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 the "Designation of
subsidiaries" covenant, the ratio of:
- the aggregate outstanding principal amount of all Indebtedness of the
restricted group as of such date;
to
- 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:
1. pro forma effect shall be given to any Indebtedness to be incurred
or repaid on the date of incurrence of any Indebtedness, referred to as the
transaction date;
2. 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 Dispositions, that occur from the beginning of the
fiscal quarter through the transaction date, referred to as 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
Acquisition, giving pro forma effect to any cost reductions Cox Radio
anticipates if Cox Radio delivers to the trustee an officer's certificate
executed by the Chief Financial Officer of Cox Radio 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
3. 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 entity that has become a restricted
subsidiary or has been merged with or into Cox Radio or any
restricted subsidiary during such reference period; and
- would have constituted Asset Dispositions or Asset Acquisitions
had such transactions occurred when such entity 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 paragraph (2) or (3) above
requires that pro forma effect be given to an Asset Acquisition of
Asset Disposition, such pro forma calculation shall be based upon
the fiscal quarter immediately preceding the transaction date of
the entity, or division or line of business of the entity, that is
acquired or disposed of for which financial information is
available.
Permitted liens means:
- 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;
- statutory and common law liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other similar liens
arising in 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, under GAAP has been made;
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- liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
types of social security;
- 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-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;
- 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 Cox Radio or
any of its restricted subsidiaries;
- liens upon real or personal property acquired after the closing date;
provided that:
1. such lien is created solely for the purpose of securing
Indebtedness incurred, in accordance with the "Limitation on
Indebtedness of restricted subsidiaries" covenant to finance the
cost, including the cost of design, development, acquisition,
installation, integration, improvement or construction, of the item
of property or assets subject to such lien, 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;
2. the principal amount of the Indebtedness secured by such lien does
not exceed 100% of such cost; and
3. 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;
- liens arising from filing Uniform Commercial Code financing statements
regarding leases;
- liens on property of, or on shares of capital stock or Indebtedness of,
any entity existing at the time such entity becomes, or becomes a part
of, any restricted subsidiary; provided that such liens do not extend to
or cover any property or assets of Cox Radio or any restricted subsidiary
other than the property or assets acquired;
- liens in favor of Cox Radio or any restricted subsidiary;
- liens arising from the rendering of a final judgment or order against Cox
Radio or any restricted subsidiary that does not give rise to an event of
default;
- 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;
- 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;
- liens encumbering customary initial deposits and margin deposits, and
other liens that are within the general parameters customary in the radio
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, futures contracts, futures
options or similar agreements or arrangements designed solely to protect
Cox Radio or any of its restricted subsidiaries from fluctuations in
interest rates, currencies or the price of commodities;
- liens arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of goods entered into by Cox Radio or
any of its restricted subsidiaries in the ordinary course of business in
accordance with industry practice;
- 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
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- liens on or sales of receivables, including related intangible assets and
proceeds thereof where, in the good faith determination of Cox Radio, Cox
Radio has received the fair market value of such receivables.
Principal property means, as of any date of determination, any property or
assets which any restricted subsidiary owns other than:
- property which, in the good faith opinion of Cox Radio's board of
directors, is not of material importance to the business conducted by Cox
Radio and its restricted subsidiaries taken as a whole; and
- any shares of any class of stock or any other security of any
unrestricted subsidiary.
Restricted group means, as of any date of determination, Cox Radio 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 which Cox Radio or a
restricted subsidiary owns.
DEFAULTS
An event of default with respect to debt securities of any series is
defined in the indenture as:
1. a default in the payment of interest when due on the debt
securities of that series which continues for 30 days;
2. a default in the payment of principal of or any premium on any debt
security of that series, or any additional amounts payable on any
debt security of that series, when due, whether at its stated
maturity, upon redemption, upon required repurchase, by declaration
or otherwise;
3. a default in the deposit of any sinking fund payment when due on
the debt securities of that series;
4. Cox Radio's or the guarantor's failure to comply with their
respective obligations under "-- Certain Covenants -- Mergers or
sales of assets" above;
5. Cox Radio's failure to comply, within 60 days after notice provided
in accordance with the terms of the indenture, with any of its
other covenants or agreements contained in the indenture with
respect to that series of debt securities, including its
obligations under the covenants described above under "-- Certain
Covenants -- Limitation on liens," "-- Limitation on Indebtedness
of restricted subsidiaries" or "-- Designation of subsidiaries,"
provided that this provision does not apply to defaults in
covenants for which the indenture specifically provides otherwise;
6. failure of Cox Radio or any restricted subsidiary to pay
Indebtedness within any applicable grace period after final
maturity or acceleration of Indebtedness by its holders because of
a default and the total amount of such Indebtedness unpaid or
accelerated exceeds the greater of $25 million or 30% of the
aggregate outstanding principal amount of all Indebtedness of Cox
Radio and its restricted subsidiaries;
7. certain events of bankruptcy, insolvency or reorganization of Cox
Radio or a restricted subsidiary;
8. Cox Radio's or any restricted subsidiary's failure, within 60 days,
to pay, bond or otherwise discharge any uninsured judgment or court
order for the payment of money in excess of $25 million, which is
not stayed on appeal or is not otherwise being appropriately
contested in good faith; or
9. any other events of default specified for that series of debt
securities.
Except as described in the second to last sentence of this paragraph, if an
event of default occurs and is continuing with respect to a particular series of
debt securities, the trustee or the holders of at least 25%
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in principal amount of the outstanding debt securities of such series may
declare the principal of and accrued but unpaid interest on all the debt
securities of such series to be due and payable. Upon such a declaration, such
principal and interest shall be due and payable immediately. If an event of
default relating to specific events of bankruptcy, insolvency or reorganization
of Cox Radio occurs and is continuing, the principal of and interest on all the
debt securities will become and be immediately due and payable without any
declaration or other act on the part of the trustee or any holders of the debt
securities. Under some circumstances, the holders of a majority in principal
amount of the outstanding debt securities of a series may rescind any
acceleration and its consequences with respect to the debt securities of that
series.
Subject to the provisions of the indenture relating to the duties of the
trustee, if an event of default occurs and is continuing, the trustee will be
under no obligation to exercise any of its rights or powers under the indenture
at the request or direction of any of the holders of the debt securities of any
series, unless such holders have offered to the trustee reasonable indemnity or
security against any loss, liability or expense. Except to enforce the right to
receive payment of principal, premium, if any, or interest when due, no debt
security holder may pursue any remedy with respect to the indenture or the debt
securities of its series unless:
- that holder has previously given the trustee notice that an event of
default is continuing;
- holders of at least 25% in principal amount of the outstanding debt
securities of such series have requested the trustee to pursue the
remedy;
- those holders have offered the trustee reasonable security or indemnity
against any loss, liability or expense;
- the trustee has not complied with such request within 60 days of
receiving it with an offer of security or indemnity; and
- the holders of a majority in principal amount of the outstanding debt
securities of such series have not given the trustee a direction
inconsistent with such request within such 60-day period.
Subject to some restrictions, the holders of a majority in principal amount
of the outstanding debt securities of any series are given the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the trustee, or of exercising any trust or power conferred on the trustee.
The trustee, however, may refuse to follow any direction that conflicts with law
or the indenture or that the trustee determines is unduly prejudicial to the
rights of any other holder of a debt security of the same series, or that would
involve the trustee in personal liability.
The indenture provides that if a default occurs and is continuing with
respect to a particular series of debt securities and is known to the trustee,
the trustee must mail notice of the default within 90 days after it occurs to
each holder of the debt securities of such series. Except in the case of a
default in the payment of principal of, premium, if any, or interest on any debt
security, the trustee may withhold notice if and so long as a committee of its
trust officers determines that withholding notice is in the interests of the
holders of the debt securities of such series. In addition, Cox Radio must
deliver to the trustee, within 120 days after the end of each fiscal year, an
officers' certificate indicating whether the signing officers know of any
default that occurred during the previous year. Cox Radio also is required to
deliver to the trustee, within 30 days after its occurrence, written notice of
any events which would constitute certain defaults, their status and what action
Cox Radio is taking or proposes to take.
The holders of a majority in aggregate principal amount of the outstanding
debt securities of that series may, on behalf of all the debt securities and any
related coupons of that series, waive any past default or event of default,
except:
- a default in the payment of the principal of, any premium or interest on,
or any additional amounts with respect to, any of the debt securities or
in the payment of any related coupon; and
- a default that cannot be waived without the consent of each holder
affected.
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A waiver will serve to end such default, to cure any event of default, and to
restore Cox Radio, the trustee and holders of the affected debt securities to
their former positions and rights. No such waiver will extend to any subsequent
or other default.
AMENDMENTS AND WAIVERS
Subject to specific exceptions, the indenture may be amended with respect
to a series of debt securities with the consent of the holders of a majority in
principal amount then outstanding of the debt securities of that series,
including consents obtained in connection with a tender offer or exchange for
the debt securities. Any past default or compliance with any provisions also may
be waived with such a consent of the holders of a majority in principal amount
then outstanding of the debt securities of such series. However, without the
consent of each holder of an outstanding debt security of that series, no
amendment may, among other things:
- change the stated maturity of the principal of, or any premium or
installment of interest on, or any additional amounts payable in respect
of, any debt security of that series;
- reduce the principal amount of, or the rate, or modify the calculation of
such rate, of interest on, or any additional amounts with respect to, or
any premium payable upon redemption of, any debt security of that series;
- change the obligation of Cox Radio to pay additional amounts with respect
to any debt security of that series or reduce the amount of any debt
security of that series provable in bankruptcy;
- change the redemption provisions of any debt security of that series;
- change the place of payment or the coin or currency in which the
principal of, or any premium or interest on or any additional amounts
with respect to any debt security of that series is payable;
- impair the right to institute suit for the enforcement of any payment on
or after the stated maturity of any debt security of that series, or, in
the case of redemption, on or after the redemption date;
- reduce the percentage and principal amount of the outstanding debt
securities of that series, the consent of whose debt securities holders
is required in order to take certain actions;
- reduce the requirements for quorum or voting by debt securities holders
of any series;
- modify any provisions of the indenture regarding the waiver of past
defaults or the waiver of certain covenants by the debt securities
holders of any series except to increase any percentage vote required or
to provide that certain other provisions of the indenture cannot be
modified or waived without the consent of the holder of each outstanding
debt security of that series who is affected by the proposed modification
or waiver;
- make any changes to the terms and conditions of the guarantor's
obligations that adversely affect the debt securities holders of any
series;
- make any changes that adversely affect the right to exchange any debt
security of that series for other securities in accordance with its
terms; or
- modify any of the above.
Without the consent of any of the debt securities holders, Cox Radio, the
guarantor and the trustee may amend the indenture:
- to cure any ambiguity, omission, defect or inconsistency;
- to provide for the assumption of all obligations of Cox Radio under the
debt securities or all obligations of the guarantor under its guarantee
and, in each case, the indenture, by any successor entity, as provided in
the indenture;
- to provide for uncertificated debt securities in addition to or in place
of certificated debt securities;
- to make any change that does not adversely affect the rights of any debt
securities holder;
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- to provide for the issuance of and to establish the form and terms and
conditions of a series of debt securities or the form of any
certification required to be furnished under the indenture or by the
terms of any series of debt securities;
- to add to the rights of debt securities holders; or
- to secure the debt securities.
Under the indenture, Cox Radio and the guarantor are required to provide
the trustee with an annual statement as to the performance by Cox Radio and the
guarantor of their respective obligations under the indenture and as to any
default in such performance. Cox Radio is also required to deliver to the
trustee, within five days after its occurrence, written notice of any event of
default or any event which after notice or lapse of time or both would
constitute an event of default.
The indenture does not require the debt securities holders to give consent
approving the particular form of any proposed amendment. It is sufficient if
such consent approves the substance of the proposed amendment.
After an amendment under the indenture becomes effective, Cox Radio is
required to mail to holders of the debt securities of the affected series a
notice briefly describing such amendment. However, Cox Radio's failure to give
such notice to all holders of the debt securities of such series, or any defect
in such notice, will not impair or affect the validity of the amendment.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Cox Radio may discharge certain obligations to holders of any series of
debt securities that have not already been delivered to the trustee for
cancellation and that either have become due and payable or will become due and
payable within one year, or scheduled for redemption within one year, by
depositing with the trustee, in trust, funds in U.S. dollars in an amount
sufficient to pay the entire indebtedness on such debt securities with respect
to principal, and premium, if any, and interest to the date of such deposit, if
such debt securities have become due and payable, or to the date of their stated
maturity, upon redemption, upon required repurchase, by declaration or
otherwise, as the case may be.
The indenture provides that, unless the following provisions are made
inapplicable to the debt securities of or within any series, Cox Radio may elect
either:
1. defeasance, which means to defease and be discharged from its
obligations with respect to the debt securities, except for, among
other things:
- the obligation to pay additional amounts owed to holders of debt
securities, if any, and other obligations to register the
transfer or exchange of the debt securities;
- to replace temporary or mutilated, destroyed, lost or stolen debt
securities;
- to maintain an office or agency with respect to the debt
securities; and
- to hold moneys for payment in trust; or
2. covenant defeasance, which means to be released from its
obligations with respect to the debt securities under the covenants
described under "Certain Covenants -- Limitation on liens" and
"-- Limitation on Indebtedness of restricted subsidiaries" above
and its obligations with respect to any other specified covenant,
and any omission to comply with such obligations shall not
constitute a default or an event of default with respect to the
debt securities.
Defeasance or covenant defeasance, as the case may be, are conditioned upon
the irrevocable deposit by Cox Radio with the trustee, in trust, of an amount in
U.S. dollars or government obligations, or both, which through the scheduled
payment of principal and interest in accordance with their terms will provide
money in an amount sufficient to pay the principal of, and premium, if any, and
interest on the debt securities on their scheduled due date.
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This trust may only be established if, among other things:
- the applicable defeasance or covenant defeasance does not result in a
breach or violation of, or constitute a default under, the indenture or
any other material agreement or instrument to which Cox Radio is a party
or by which it is bound;
- no event of default or event which with notice or lapse of time or both
would become an event of default with respect to the debt securities to
be defeased shall have occurred and be continuing on the date of
establishing the trust and, for defeasance only, at any time during the
period ending on the 123rd day after such date; and
- Cox Radio has delivered to the trustee an opinion of counsel, as
specified in the indenture, to the effect that:
1. the holders of the debt securities will not recognize income, gain
or loss for U.S. federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to U.S.
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 or
covenant defeasance had not occurred; and
2. such opinion of counsel, in the case of defeasance, must refer to
and be based upon a letter ruling of the Internal Revenue Service
received by Cox Radio, a ruling published by the Internal Revenue
Service or a change in applicable U.S. federal income tax law
occurring after the date of the indenture.
The term government obligations, for purposes of funding the trust, means
securities which are:
1. direct obligations of the United States of America, for the payment
of which its full faith and credit is pledged; or
2. obligations of an entity controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the
timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America,
which, in the case of clauses 1 and 2 above, are not callable or redeemable at
the option of the issuer or issuers, 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
any other amount with respect to any such government obligation held by such
custodian for the account of the holder of such 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 with respect to the government obligation
or the specific payment of interest on or principal of or any other amount with
respect to the government obligation evidenced by such depository receipt.
In the event Cox Radio elects covenant defeasance with respect to any debt
securities and such debt securities are declared due and payable because of the
occurrence of any event of default other than an event of default relating to a
breach of the related covenant which would no longer be applicable to such debt
securities after such covenant defeasance, or with respect to any other covenant
as to which there has been covenant defeasance, the government obligations on
deposit with the trustee will be sufficient to pay amounts due on such debt
securities at the time of their stated maturity, but may not be sufficient to
pay amounts due on such debt securities at the time of the acceleration
resulting from such event of default. Cox Radio would, in that case, remain
liable to make payment of such amounts due at the time of acceleration.
TRANSFER
Holders may transfer or exchange the debt securities in accordance with the
indenture. Unless Cox Radio indicates otherwise in the applicable prospectus
supplement, Cox Radio will issue the debt securities in registered form and they
will be transferable only upon the surrender of such debt securities for
registration of transfer. Cox Radio may require payment of a sum sufficient to
cover any tax, assessment or
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other governmental charge payable in connection with certain transfers or
exchanges. Cox Radio is not required to transfer or exchange any debt security
selected for redemption. In addition, Cox Radio is not required to transfer or
exchange any debt security for a period of 15 days before a selection of debt
securities to be redeemed or before any interest payment date.
GOVERNING LAW
The indenture provides that it, the debt securities and the guarantees will
be governed by, and construed in accordance with, the laws of the State of New
York without giving effect to applicable principles of conflicts of law to the
extent that the application of the law of another jurisdiction would be required
thereby.
GLOBAL SECURITIES
Cox Radio may issue the registered debt securities of a series in the form
of one or more fully registered global securities which will be deposited with a
depositary, or with a nominee for the depositary, as identified in the
prospectus supplement relating to such series. A registered global security will
be registered in the name of the depositary or its nominee. If registered debt
securities are issued in global form, one or more registered global securities
will be issued in a denomination or aggregate denominations equal to the portion
of the aggregate principal amount of outstanding registered debt securities of
the series to be represented by those registered global securities.
The specific terms of the depositary arrangement with respect to any
portion of a series of debt securities to be represented by a registered global
security will be described in the prospectus supplement relating to such series.
Cox Radio anticipates that the following provisions will apply to all depositary
arrangements.
Ownership of beneficial interests in a registered global security will be
limited to persons, who will be referred to as participants, who have accounts
with the depositary for such registered global security, or persons that may
hold interests through participants. Upon the issuance of a registered global
security, the depositary will credit the participants' accounts, on its
book-entry registration and transfer system, with the respective principal
amounts of the debt securities represented by such registered global security
and beneficially owned by those participants. The accounts to be credited shall
be designated by any dealers, underwriters or agents participating in the
distribution of those debt securities, or by Cox Radio if it offers and sells
such debt securities directly. Ownership of beneficial interests in such
registered global security will be shown on, and the transfer of those ownership
interests will be effected only through, records maintained by the depositary
with respect to participants' interests, and on the records of participants with
respect to interests of persons holding through participants. The laws of some
states may require that some purchasers of securities take physical delivery of
such securities in definitive form. Such laws may impair the ability of those
purchasers to own, transfer or pledge beneficial interests in registered global
securities.
So long as the depositary for a registered global security, or its nominee,
is the registered owner of that registered global security, that depositary or
that nominee, as the case may be, will be considered the sole owner or holder of
the debt securities represented by such registered global security for all
purposes under the indenture. Except as set forth below, owners of beneficial
interests in a registered global security will not be entitled to have the debt
securities registered in their names, will not receive or be entitled to receive
physical delivery of such debt securities in definitive form and will not be
considered the owners or holders of the debt securities under the indenture.
Accordingly, each person owning a beneficial interest in a registered global
security must rely on the procedures of the depositary for such registered
global security and, if such person is not a participant, on the procedures of
the participant through which that person owns its interest, to exercise any
rights a holder possesses under the indenture. Cox Radio understands that under
existing industry practices, if Cox Radio requests any action of holders or if
an owner of a beneficial interest in a registered global security desires to
give or take any action which a holder is entitled to give or take under the
indenture, as the case may be, the depositary for such registered global
security would authorize the participants holding the relevant beneficial
interests to give or take that action, and such
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participants would authorize beneficial owners owning through such participants
to give or take that action or would otherwise act upon the instructions of
beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities
represented by a registered global security registered in the name of a
depositary or its nominee will be made to such depositary or its nominee, as the
case may be, as the registered owner of such registered global security. None of
Cox Radio, the trustee, the registrar or any other agent of Cox Radio, of the
trustee or of the registrar will have any responsibility or liability for any
aspect of the records relating to, or payments made on account of, beneficial
ownership interests in such registered global security, or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Cox Radio expects that the depositary for any debt securities represented
by a registered global security, or its nominee, upon receipt of any payment of
principal, premium or interest in respect of the registered global security,
will immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests as shown on the records
of such depositary or its nominee. Cox Radio also expects that payments by
participants to owners of beneficial interests in the registered global security
held through such participants will be governed by standing customer
instructions and customary practices, and will be the responsibility of those
participants, as is now the case with the securities held for the accounts of
customers in bearer form or registered in street name.
The indenture provides that if:
- the depositary for any debt securities represented by a registered global
security notifies Cox Radio that it is unwilling or unable to continue as
depositary, or ceases to be eligible under the indenture and Cox Radio
does not appoint a successor depositary within 90 days; or
- Cox Radio determines that the debt securities of any series will no
longer be represented by a registered global security and executes and
delivers to the trustee an order to that effect; or
- an event of default with respect to the debt securities of any series has
occurred and is continuing,
then Cox Radio will issue such debt securities in definitive form in exchange
for all of the registered global securities representing such debt securities.
Any debt securities issued in definitive form in exchange for a registered
global security will be registered in such name or names as the depositary shall
instruct the trustee or the registrar. Cox Radio expects that such instructions,
with respect to ownership of beneficial interests in the registered global
security, will be based upon directions received by the depositary from
participants.
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DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
GENERAL
The junior subordinated debentures will be issued in one or more series
under a junior subordinated debenture indenture, as supplemented from time to
time, between Cox Radio and The Bank of New York, as the debenture trustee. The
junior subordinated debenture indenture has been qualified under the Trust
Indenture Act, and is subject to, and governed by, the Trust Indenture Act and
is included as an exhibit to the registration statement of which this prospectus
is a part. This summary of certain terms and provisions of the junior
subordinated debentures and the junior subordinated debenture indenture does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, all of the provisions of such junior subordinated debentures and
the junior subordinated debenture indenture, including the definitions therein
of certain terms, and those terms made a part of the junior subordinated
debenture indenture by the Trust Indenture Act.
The prospectus supplement will describe the specific terms of each series
of junior subordinated debentures offered thereby, including:
- the specific title and designation, aggregate principal amount, including
any limit on the principal amount, purchase price and denominations of
those junior subordinated debentures;
- the date or dates on which the principal of those junior subordinated
debentures is payable or the method of determining the same, if
applicable;
- the rate or rates, which may be fixed or variable, at which those junior
subordinated debentures will bear interest, if any, or the method of
determining the same, if applicable;
- the date or dates from which interest, if any, shall accrue or the method
of determining the same, if applicable, the interest payment dates, if
any, on which interest will be payable or the manner of determining the
same, if applicable, and the record dates for the determination of
holders to whom interest is payable on those junior subordinated
debentures;
- the duration of the maximum consecutive period that Cox Radio may elect
to defer payments of interest on those junior subordinated debentures;
- any redemption, repayment or sinking fund provisions;
- whether those junior subordinated debentures are convertible into or
exchangeable for Class A common stock or other securities or rights of
Cox Radio or other issuers, or a combination of the foregoing and, if so,
the applicable conversion or exchange terms and conditions;
- any applicable material United States federal income tax consequences;
and
- any other specific terms pertaining to those junior subordinated
debentures, whether in addition to, or modification or deletion of, the
terms described herein.
RANKING
Each series of junior subordinated debentures will rank equally with all
other series of junior subordinated debentures to be issued by Cox Radio and
sold to other trusts or other entities to be established by Cox Radio that are
similar to the Cox Radio Trusts and will be unsecured and will rank subordinate
and junior in right of payment, to the extent and in the manner set forth in the
junior subordinated debenture indenture, to all senior indebtedness of Cox Radio
as defined in the junior subordinated debenture indenture. The junior
subordinated debenture indenture will not limit the amount of secured or
unsecured debt, including senior indebtedness, that may be incurred by Cox Radio
or its subsidiaries. See "-- Subordination." As of December 31, 1999, the
aggregate principal amount of senior indebtedness as defined in the junior
subordinated debenture indenture was approximately $437.2 million.
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FORM, REGISTRATION AND TRANSFER
The junior subordinated debentures will be issued in fully registered form.
Until any dissolution of the applicable Cox Radio Trust, the junior subordinated
debentures will be held in the name of the property trustee in trust for the
benefit of the holders of the related trust securities. If the junior
subordinated debentures are distributed to the holders of the related trust
securities, the junior subordinated debentures will be issued to such holders in
the same form as the trust securities were held. Accordingly, any depositary
arrangements for such junior subordinated debentures are expected to be
substantially similar to those in effect for the trust preferred securities. See
"Description of Trust Preferred Securities -- Global Trust Preferred
Securities."
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment
of principal of and premium, if any, on and interest on the junior subordinated
debentures will be made at the office of the debenture trustee in The City of
New York or at the office of such paying agent or paying agents as Cox Radio may
designate from time to time, except that at the option of Cox Radio payment of
any interest may be made, except in the case of a global certificate
representing junior subordinated debentures, by:
1. check mailed to the address of the person entitled thereto as such
address shall appear in the applicable securities register for junior
subordinated debentures; or
2. transfer to an account maintained by the person entitled thereto as
specified in such securities register, provided that proper transfer
instructions have been received by the relevant record date.
Payment of any interest on any junior subordinated debenture will be made
to the person in whose name such junior subordinated debenture is registered at
the close of business on the record date for such interest, except in the case
of defaulted interest. Cox Radio may at any time designate additional paying
agents or rescind the designation of any paying agent; provided, however, Cox
Radio will at all times be required to maintain a paying agent in each place of
payment for the junior subordinated debentures.
Any moneys deposited with the debenture trustee or any paying agent, or
then held by Cox Radio in trust, for the payment of the principal of and
premium, if any, on or interest on any junior subordinated debentures and
remaining unclaimed for two years after such principal and premium, if any, or
interest has become due and payable shall, at the request of Cox Radio, be
repaid to Cox Radio and the holder of such junior subordinated debentures shall
thereafter look, as a general unsecured creditor, only to Cox Radio for payment
thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE
So long as no debenture event of default has occurred and is continuing,
Cox Radio will have the right under the junior subordinated debenture indenture
to defer the payment of interest on the junior subordinated debentures at any
time or from time to time up to the maximum period specified in the applicable
prospectus supplement for the deferral of interest. Each of these deferral
periods is referred to in this prospectus as an extension period. An extension
period must end on an interest payment date and may not extend beyond the stated
maturity of such junior subordinated debentures. At the end of an extension
period, Cox Radio must pay all interest then accrued and unpaid, together with
interest on the accrued and unpaid interest, to the extent permitted by
applicable law. During an extension period, interest will continue to accrue and
holders of junior subordinated debentures, and holders of the related trust
securities that are outstanding will be required to accrue such deferred
interest income for United States federal income tax purposes prior to the
receipt of cash attributable to such income, regardless of the method of
accounting used by the holders.
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Prior to the termination of any extension period, Cox Radio may extend such
extension period, provided that such extension does not:
- cause such extension period to exceed the maximum extension period;
- end on a date other than an interest payment date; or
- extend beyond the stated maturity of the related junior subordinated
debentures.
Upon the termination of any extension period, or any extension of the
related extension period, and the payment of all amounts then due, Cox Radio may
begin a new extension period, subject to the limitations described above. No
interest shall be due and payable during an extension period except at the end
thereof. Cox Radio must give the debenture trustee notice of its election to
begin or extend an extension period at least five business days prior to the
earlier of:
- the date cash distributions on the related trust securities would have
been payable except for the election to begin or extend such extension
period; or
- the date the applicable Cox Radio Trust is required to give notice to any
securities exchange or to holders of its trust preferred securities of
the record date or the date cash distributions are payable, but in any
event not less than five business days prior to such record date.
The debenture trustee shall give notice of Cox Radio's election to begin or
extend an extension period to the holders of the trust preferred securities.
Subject to the foregoing limitations, there is no limitation on the number of
times that Cox Radio may begin or extend an extension period.
RESTRICTIONS ON CERTAIN PAYMENTS
Cox Radio will covenant that if at any time:
1. there shall have occurred any event of which Cox Radio has actual
knowledge that is, or with the giving of notice or the lapse of time,
or both, would be, a debenture event of default;
2. Cox Radio shall be in default with respect to any of its payment
obligations under the preferred securities guarantee; or
3. Cox Radio shall have given notice of its election to exercise its
right to begin or extend an extension period as provided in the
junior subordinated debenture indenture and shall not have rescinded
such notice, and such extension period, or any extension thereof,
shall have commenced and be continuing,
then it will not:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of Cox Radio's
capital stock; or
- make any payment of principal of or premium, if any, on or interest on or
repay or repurchase or redeem any debt securities of Cox Radio, including
other junior subordinated debentures, that rank equally with or junior in
right of payment to the junior subordinated debentures; or
- make any guarantee payments with respect to any guarantee by Cox Radio of
the debt securities of any subsidiary of Cox Radio, including under any
guarantees to be issued by Cox Radio with respect to securities of other
Cox Radio trusts or entities to be established by Cox Radio similar to
the Cox Radio Trusts, if such guarantee ranks equally with or junior in
right of payment to the junior subordinated debentures
other than:
- dividends or distributions in shares of, or options, warrants or rights
to subscribe for or purchase shares of, Class A and Class B common stock
of Cox Radio;
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- any declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan
in the future, or the redemption or repurchase of any such rights
pursuant thereto;
- payments under the preferred securities guarantee;
- as a result of reclassification of Cox Radio's capital stock or the
exchange or conversion of one class or series of Cox Radio's capital
stock for another class or series of Cox Radio's capital stock;
- the purchase of fractional interests in shares of Cox Radio's capital
stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged; and
- purchases of Class A and Class B common stock related to the issuance of
Class A and Class B common stock or rights under any of Cox Radio's
benefit plans for its directors, officers or employees or any of Cox
Radio's dividend reinvestment plans.
So long as the trust securities remain outstanding, Cox Radio also will
covenant:
- to maintain 100% direct or indirect ownership of the related trust common
securities, provided that any permitted successor of Cox Radio under the
junior subordinated debenture indenture may succeed to Cox Radio's
ownership of such trust common securities;
- to use its best efforts to cause each Cox Radio Trust:
- to remain a business trust, except in connection with the distribution
of junior subordinated debentures to the holders of related trust
securities in liquidation of such Cox Radio Trust, the conversion,
exchange or redemption of all of such trust securities, or certain
mergers, consolidations or amalgamations, each as permitted by the
declaration of trust, and
- to otherwise continue to be classified as a grantor trust for United
States federal income tax purposes;
- to use its reasonable best efforts to cause each holder of its trust
securities to be treated as owning an undivided beneficial interest in
the related junior subordinated debentures; and
- not to cause, as sponsor of the Cox Radio Trusts, or to permit, as the
trust common securities holder, the dissolution, liquidation or
winding-up of any Cox Radio Trust, except as provided in the declaration
of trust.
MODIFICATION OF JUNIOR SUBORDINATED DEBENTURE INDENTURE
From time to time, Cox Radio and the debenture trustee may, without the
consent of the holders of the junior subordinated debentures, amend, waive or
supplement the junior subordinated debenture indenture for specified purposes,
including, among other things, curing ambiguities or adding provisions, provided
that any such action does not materially adversely affect the interests of the
holders of the junior subordinated debentures, and maintaining the qualification
of the junior subordinated debenture indenture under the Trust Indenture Act.
The junior subordinated debenture indenture will permit Cox Radio and the
debenture trustee, with the consent of the holders of a majority in principal
amount of all outstanding junior subordinated debentures affected thereby, to
modify the junior subordinated debenture indenture in a manner affecting the
rights of the holders of junior subordinated debentures; provided, however, that
no such modification may, without the consent of the holder of each outstanding
junior subordinated debenture so affected:
- change the stated maturity or reduce the principal of any such junior
subordinated debentures;
- change the interest rate, or the manner of calculation of the interest
rate, or extend the time of payment of interest on any such junior
subordinated debentures except pursuant to Cox Radio's right under the
junior subordinated debenture indenture to defer the payment of interest
as provided therein (see "-- Option to Extend Interest Payment Date");
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- change any of the conversion, exchange or redemption provisions
applicable to any such junior subordinated debentures;
- change the currency in respect of which payments of principal of or any
premium or interest on any such junior subordinated debentures are to be
made;
- change the right of holders of trust securities to bring a direct action
in respect of any required payments or conversion or exchange rights;
- impair or affect the right of any holder of any such junior subordinated
debentures to institute suit for the payment of the principal thereof or
premium, if any, or interest thereon or for the conversion or exchange of
any such junior subordinated debentures in accordance with their terms;
- change the subordination provisions adversely to the holders of the
junior subordinated debentures; or
- reduce the percentage of principal amount of junior subordinated
debentures the holders of which are required to consent to any such
modification of the junior subordinated debenture indenture.
DEBENTURE EVENTS OF DEFAULT
The following described events with respect to any series of junior
subordinated debentures will constitute a debenture event of default, whatever
the reason for such debenture 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 the
junior subordinated debenture indenture:
1. failure for 30 days to pay any interest on that series of junior
subordinated debentures when due, subject to any permitted deferral
thereof; provided that, during any extension period for such series
of junior subordinated debentures, failure to pay interest on such
series of junior subordinated debentures shall not constitute a
debenture event of default; or
2. failure to pay any principal of or premium, if any, on that series of
junior subordinated debentures when due, whether at maturity, upon
any redemption, by declaration of acceleration of maturity or
otherwise; or
3. if applicable, failure by Cox Radio to deliver the required
securities or other rights upon an appropriate conversion or exchange
election by holders of that series of junior subordinated debentures
or the related trust preferred securities; or
4. failure to observe or perform any other agreement or covenant
contained in the junior subordinated debenture indenture in respect
of that series of junior subordinated debentures for 90 days after
written notice to Cox Radio from the debenture trustee or the holders
of at least 25% in aggregate outstanding principal amount of that
series of junior subordinated debentures; or
5. certain events in bankruptcy, insolvency or reorganization of Cox
Radio.
The holders of a majority in aggregate outstanding principal amount of the
junior subordinated debentures of any series have, subject to certain
exceptions, the right to direct the time, method and place of conducting any
proceeding for any remedy available to the debenture trustee in respect of such
junior subordinated debentures. The debenture trustee or the holders of at least
25% in aggregate outstanding principal amount of the junior subordinated
debentures of any series may declare the principal of and any accrued interest
on such junior subordinated debentures due and payable immediately upon a
debenture event of default, other than a debenture event of default referred to
in paragraph (5) above, which shall result in the immediate acceleration of the
junior subordinated debentures. The holders of a majority in aggregate
outstanding principal amount of the junior subordinated debentures of any series
may annul such declaration and waive the default in respect of such junior
subordinated debentures if the default, other
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than the non-payment of the principal and interest of the junior subordinated
debentures which has become due solely by such acceleration, has been cured and
a sum sufficient to pay all matured installments of interest and premium, if
any, and principal due otherwise than by acceleration has been deposited with
the debenture trustee.
The holders of a majority in aggregate outstanding principal amount of the
junior subordinated debentures of any series may, on behalf of the holders of
all of the junior subordinated debentures of such series, waive any past default
except:
- a default in the payment of the principal of or premium, if any, on or
interest on the junior subordinated debentures, unless such default has
been cured and a sum sufficient to pay all matured installments of
interest and premium, if any, and principal due otherwise than by
acceleration has been deposited with the debenture trustee; or
- a default in respect of a covenant or provision which under the junior
subordinated debenture indenture cannot be modified or amended without
the consent of the holder of each outstanding junior subordinated
debenture of such series.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED SECURITIES
To the extent any action under the junior subordinated debenture indenture
is entitled to be taken by the holders of at least a specified percentage of
junior subordinated debentures, holders of the corresponding trust preferred
securities may take such action if such action is not taken by the property
trustee of the related Cox Radio Trust. Notwithstanding the foregoing, if a
debenture event of default has occurred and is continuing and is attributable
either to:
- the failure of Cox Radio to pay the principal of or premium, if any, on
or interest on the junior subordinated debentures on the due date; or
- the failure by Cox Radio to deliver the required securities or other
rights upon an appropriate conversion or exchange right election,
a holder of the related trust preferred securities may institute a legal
proceeding directly against Cox Radio for enforcement of payment to such holder
of the principal of or premium, if any, on or interest on such junior
subordinated debentures having a principal amount equal to the liquidation
amount of the trust preferred securities held by such holder or for enforcement
of such conversion or exchange rights, as the case may be, which is referred to
as a direct action. Cox Radio may not amend the junior subordinated debenture
indenture to remove the foregoing right to bring a direct action without the
prior written consent of the holders of all of the trust preferred securities
outstanding. If the right to bring a direct action is removed, the applicable
Cox Radio Trust may become subject to the reporting obligations under the
Exchange Act. Notwithstanding any payments made to a holder of trust preferred
securities by Cox Radio in connection with a direct action, Cox Radio shall
remain obligated to pay the principal of and premium, if any, on and interest on
the related junior subordinated debentures, and Cox Radio shall be subrogated to
the rights of the holder of such trust preferred securities with respect to
payments on the trust preferred securities to the extent of any payments made by
Cox Radio to such holder in any direct action.
The holders of the trust preferred securities will not be able to exercise
directly any remedies, other than those set forth in the preceding paragraph,
available to the holders of the related junior subordinated debentures unless an
event of default has occurred and is continuing under the applicable declaration
of trust. See "Description of Trust Preferred Securities -- Events of Default;
Notice."
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CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
Cox Radio shall not consolidate with or merge into any other person or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any person, and no person shall consolidate with
or merge into Cox Radio or convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to Cox Radio, unless:
- in case Cox Radio consolidates with or merges into another person or
conveys or transfers its properties and assets as an entirety or
substantially as an entirety to any person, the successor person is
organized under the laws of the United States or any State or the
District of Columbia, and such successor person expressly assumes Cox
Radio's obligations under the junior subordinated debentures and the
preferred securities guarantee;
- immediately after giving effect thereto, no debenture event of default,
and no event which, after notice or lapse of time or both, would become a
debenture event of default, shall have occurred and be continuing; and
- certain other conditions as prescribed in the junior subordinated
debenture indenture are met.
SATISFACTION AND DISCHARGE
The junior subordinated debenture indenture will cease to be of further
effect, except as to Cox Radio's obligations to pay all other sums due pursuant
to the junior subordinated debenture indenture and to provide the required
officers' certificates and opinions of counsel, and Cox Radio will be deemed to
have satisfied and discharged the junior subordinated debenture indenture, when,
among other things, all junior subordinated debentures not previously delivered
to the debenture trustee for cancellation:
- have become due and payable;
- will become due and payable at maturity or upon redemption within one
year; or
- if redeemable at the option of Cox Radio, are to be called for redemption
within one year under arrangements satisfactory to the debenture trustee
for the giving of notice of redemption by the debenture trustee in the
name, and at the expense, of Cox Radio;
and Cox Radio deposits or causes to be deposited with the debenture trustee
funds, in trust, for the purpose and in an amount sufficient to pay and
discharge the entire indebtedness on the junior subordinated debentures not
previously delivered to the debenture trustee for cancellation, for the
principal, and premium, if any, and interest to the date of the deposit or to
the stated maturity thereof, as the case may be.
SUBORDINATION
The junior subordinated debentures will rank subordinate and junior in
right of payment to all senior indebtedness to the extent provided in the junior
subordinated debenture indenture. Upon any payment or distribution of assets to
creditors upon any liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors, marshaling of assets or any bankruptcy,
insolvency, debt restructuring or similar proceedings in connection with any
insolvency or bankruptcy proceeding of Cox Radio, the holders of senior
indebtedness will first be entitled to receive payment in full of such senior
indebtedness before the holders of junior subordinated debentures will be
entitled to receive or retain any payment in respect thereof.
In the event of the acceleration of the maturity of junior subordinated
debentures, the holders of all senior indebtedness outstanding at the time of
such acceleration will first be entitled to receive payment in full of such
senior indebtedness before the holders of junior subordinated debentures will be
entitled to receive or retain any payment in respect of the junior subordinated
debentures.
No payments on account of principal or premium, if any, or interest in
respect of the junior subordinated debentures may be made if there shall have
occurred and be continuing a default in any payment with respect to senior
indebtedness, or an event of default with respect to any senior indebtedness
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resulting in the acceleration of the maturity thereof, or if any judicial
proceeding shall be pending with respect to any such default.
Indebtedness, under the junior subordinated debentures indenture, shall
mean:
1. every obligation of Cox Radio for money borrowed;
2. every obligation of Cox Radio evidenced by bonds, debentures, notes
or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses;
3. every reimbursement obligation of Cox Radio with respect to letters
of credit, banker's acceptances or similar facilities issued for the
account of Cox Radio;
4. every obligation of Cox Radio issued or assumed as the deferred
purchase price of property or services, excluding trade accounts
payable or accrued liabilities arising in the ordinary course of
business;
5. every capital lease obligation of Cox Radio which generally accepted
accounting principles require to be classified and accounted for as a
capital lease on Cox Radio's balance sheet;
6. all indebtedness of Cox Radio, whether incurred on or prior to the
date of the junior subordinated debenture indenture or thereafter
incurred, for claims in respect of derivative products, including
interest rate, foreign exchange rate and commodity forward contracts,
options and swaps and similar arrangements;
7. letters of credit, performance bonds and similar obligations issued
in favor of governmental or licensing authorities as a term of a
governmental franchise, license, permit or authorization held by such
entity or any of its subsidiaries;
8. every obligation of the type referred to in paragraphs (1) through
(7) of another person and all dividends of another person the payment
of which, in either case, Cox Radio has guaranteed or is responsible
or liable for, directly or indirectly, as obligor or otherwise; and
9. obligations of the type referred to in paragraphs (1) through (8) of
another person secured by any lien on any property or asset of Cox
Radio, whether or not such obligation is assumed by Cox Radio; and
all deferrals, renewals, extensions and refundings of, and
amendments, modifications and supplements to, any of the foregoing
obligations.
Indebtedness ranking on a parity with the junior subordinated debentures
shall mean:
1. Indebtedness, whether outstanding on the date of execution of the
junior subordinated debenture indenture or thereafter created,
assumed or incurred, to the extent such Indebtedness specifically by
its terms ranks equally with and not prior to the junior subordinated
debentures in the right of payment upon the happening of the
dissolution, winding-up, liquidation or reorganization of Cox Radio;
and
2. all other debt securities, and guarantees in respect of those debt
securities, issued to any other trust, or a trustee of such trust,
partnership or other entity affiliated with Cox Radio that is a
financing vehicle of Cox Radio, which is referred to as a financing
entity, in connection with the issuance by such financing entity of
equity securities or other securities guaranteed by Cox Radio
pursuant to an instrument that ranks equally with or junior in right
of payment to the preferred securities guarantee.
The securing of any Indebtedness otherwise constituting indebtedness ranking on
a parity with the junior subordinated debentures shall not prevent such
Indebtedness from constituting indebtedness ranking on a parity with the junior
subordinated debentures.
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Indebtedness ranking junior to the junior subordinated debentures shall
mean any Indebtedness, whether outstanding on the date of execution of the
junior subordinated debenture indenture or thereafter created, assumed or
incurred, to the extent such Indebtedness by its terms ranks junior to and not
equally with or prior to:
- the junior subordinated debentures; and
- any other Indebtedness ranking equally with the junior subordinated
debentures in right of payment upon the happening of the dissolution,
winding-up, liquidation or reorganization of Cox Radio.
The securing of any Indebtedness otherwise constituting indebtedness ranking
junior to the junior subordinated debentures shall not be deemed to prevent such
Indebtedness from constituting Indebtedness ranking junior to the junior
subordinated debentures.
Senior indebtedness shall mean all Indebtedness, whether outstanding on the
date of execution of the junior subordinated debenture indenture or thereafter
created, assumed or incurred, except indebtedness ranking on a parity with the
junior subordinated debentures or indebtedness ranking junior to the junior
subordinated debentures.
GOVERNING LAW
The junior subordinated debenture indenture and the junior subordinated
debentures will be governed by and construed in accordance with the laws of the
State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The debenture trustee shall be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to the foregoing, the debenture trustee will not be under
any obligation to exercise any of the powers vested in it by the junior
subordinated debenture indenture at the request of any holder of junior
subordinated debentures, unless offered reasonable indemnity by such holder
against the costs, expenses and liabilities which might be incurred thereby. The
debenture trustee will not be required to expend or risk its own funds or
otherwise incur personal financial liability in the performance of its duties if
the debenture trustee reasonably believes that repayment or adequate indemnity
is not reasonably assured to it.
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DESCRIPTION OF TRUST PREFERRED SECURITIES
The trust preferred securities will be issued by a Cox Radio Trust under a
declaration of trust of such Cox Radio Trust and will represent beneficial
interests in the assets of such Cox Radio Trust. The holders of such beneficial
interests will be entitled to a preference over the trust common securities of
such Cox Radio Trust with respect to the payment of distributions and amounts
payable on redemption of the trust preferred securities or the liquidation of
such Cox Radio Trust under the circumstances described under "-- Subordination
of Trust Common Securities." The declaration of trust has been qualified under
the Trust Indenture Act and is subject to, and governed by, the Trust Indenture
Act. This summary of certain terms and provisions of the trust preferred
securities and the declaration of trust does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, all of the
provisions of the trust preferred securities and such declaration of trust,
including the definitions therein of certain terms, and those made a part of
such declaration of trust by the Trust Indenture Act.
Reference is made to the applicable prospectus supplement for a description
of the specific terms of the trust preferred securities offered thereby,
including:
- the particular Cox Radio Trust issuing such trust preferred securities;
- the specific designation, number and purchase price of such trust
preferred securities;
- the annual distribution rate, or method of calculation of the
distribution rate, for such trust preferred securities and, if
applicable, the dates from which and upon which such distributions shall
accumulate and be payable and the record dates therefor, and the maximum
extension period for which such distributions may be deferred;
- the liquidation amount per trust preferred security which shall be paid
out of the assets of such Cox Radio Trust to the holders thereof upon
voluntary or involuntary dissolution, winding-up and liquidation of such
Cox Radio Trust;
- the obligation or right, if any, of such Cox Radio Trust to purchase or
redeem its trust preferred securities and the price or prices at which,
the date or dates on which or period or periods within which and the
terms and conditions upon which, such trust preferred securities shall or
may be purchased or redeemed, in whole or in part, pursuant to such
obligation or right;
- the terms and conditions, if any, upon which such trust preferred
securities may be converted or exchanged, in addition to the
circumstances described herein, into other securities or rights, or a
combination of the foregoing, including the name of the issuer of such
securities or rights, the initial conversion or exchange price or rate
per trust preferred security and the date or dates on which or period or
periods within which such conversion or exchange may be effected;
- if applicable, any securities exchange upon which such trust preferred
securities shall be listed;
- whether such trust preferred securities are issuable in book-entry form
only and, if so, the identity of the depositary and disclosure relating
to the depositary arrangements; and
- any other rights, preferences, privileges, limitations or restrictions of
such trust preferred securities consistent with the declaration of trust
or with law which may differ from those described in this prospectus.
Certain material United States federal income tax considerations applicable to
any offering of trust preferred securities will also be described in the
applicable prospectus supplement.
GENERAL
The trust preferred securities of a Cox Radio Trust will rank equally, and
payments will be made thereon pro rata, with the trust common securities of that
Cox Radio Trust except as described under "-- Subordination of Trust Common
Securities." The proceeds from the sale of trust preferred securities and trust
common securities by a Cox Radio Trust will be used by such Cox Radio Trust to
purchase an aggregate principal amount of junior subordinated debentures or
other debt securities of Cox Radio equal
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to the aggregate liquidation amount of such trust preferred securities and trust
common securities. Legal title to such junior subordinated debentures will be
held by the property trustee of the Cox Radio Trust for the benefit of the
holders of the related trust securities. In addition, Cox Radio will execute a
preferred securities guarantee for the benefit of the holders of the related
trust preferred securities. The preferred securities guarantee will not
guarantee payment of distributions or amounts payable on redemption of the trust
preferred securities or liquidation of a Cox Radio Trust when such Cox Radio
Trust does not have funds legally available for the payment thereof. See
"Description of Preferred Securities Guarantees."
The revenue of a Cox Radio Trust available for distribution to holders of
its trust preferred securities will be limited to payments received under the
related junior subordinated debentures which such Cox Radio Trust purchased with
the proceeds from the sale of its trust securities. If Cox Radio fails to make a
required payment in respect of such junior subordinated debentures, the
applicable Cox Radio Trust will not have sufficient funds to make the related
payments, including distributions, in respect of its trust preferred securities.
Each of the Cox Radio Trusts is a separate legal entity, and the assets of one
are not available to satisfy the obligations of the other.
DEFERRAL OF DISTRIBUTIONS
So long as no debenture event of default has occurred and is continuing,
Cox Radio will have the right to defer the payment of interest on the junior
subordinated debentures at any time or from time to time for up to the maximum
extension period specified in the applicable prospectus supplement, provided
that an extension period must end on an interest payment date and may not extend
beyond the stated maturity of such junior subordinated debentures. If Cox Radio
elects to exercise such right, distributions on the related trust preferred
securities will be deferred during any such extension period. Distributions to
which holders of the trust preferred securities are entitled during any
extension period will continue to accumulate additional distributions thereon.
Cox Radio has no current intention to exercise its right to defer payments of
interest on the junior subordinated debentures Cox Radio may issue and,
accordingly, distributions on the related trust preferred securities.
REDEMPTION
Upon the repayment at the stated maturity or redemption, in whole or in
part, prior to the stated maturity of the junior subordinated debentures, the
proceeds from such repayment or redemption shall be applied by the property
trustee to redeem an aggregate liquidation amount of the related trust
securities equal to the aggregate principal amount of such junior subordinated
debentures so repaid or redeemed, upon not less than 30 nor more than 60 days
prior written notice, at a redemption price equal to such aggregate liquidation
amount plus accumulated distributions to the redemption date. Any redemption of
trust securities shall be made and the applicable redemption price shall be
payable on the redemption date only to the extent that the applicable Cox Radio
Trust has funds legally available for the payment thereof. See "-- Subordination
of Trust Common Securities."
If less than all of the junior subordinated debentures are to be redeemed
prior to the stated maturity thereof, then the proceeds of such redemption shall
be used to redeem the related trust securities on a pro rata basis among the
trust preferred securities and the trust common securities of the applicable Cox
Radio Trust except as described under "-- Subordination of Trust Common
Securities." If less than all of the trust preferred securities held in
book-entry form, if any, are to be redeemed, such trust preferred securities
will be redeemed in accordance with the procedures of The Depository Trust
Company. See "-- Global Trust Preferred Securities."
REDEMPTION PROCEDURES
If a Cox Radio Trust gives a notice of redemption in respect of its trust
preferred securities, then, by 12:00 noon, New York City time, on the redemption
date, to the extent funds are legally available,
- with respect to trust preferred securities held by The Depository Trust
Company or its nominee, the property trustee will deposit, or cause the
paying agent to deposit, irrevocably with The Depository Trust Company
funds sufficient to pay the applicable redemption price, and
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- with respect to trust preferred securities held in certificated form, the
property trustee will irrevocably deposit with the paying agent funds
sufficient to pay the applicable redemption price and will give such
paying agent irrevocable instructions and authority to pay the applicable
redemption price to the holders thereof upon surrender of their
certificates evidencing the trust preferred securities.
If notice of redemption shall have been given and funds irrevocably
deposited as required, then, upon the date of such deposit, all rights of the
holders of the trust preferred securities called for redemption will cease,
except the right of such holders to receive the applicable redemption price, but
without interest thereon, and such trust preferred securities will cease to be
outstanding. In the event that any redemption date is not a business day, then
the applicable redemption price payable on that date will be paid on the next
succeeding day that is a business day, without any interest or other payment in
respect of any delay, with the same force and effect as if made on that date. In
the event that payment of the applicable redemption price is improperly withheld
or refused and not paid either by the applicable Cox Radio Trust or by Cox Radio
pursuant to the preferred securities guarantee as described under "Description
of Preferred Securities Guarantees,"
- distributions on the related trust preferred securities will continue to
accumulate from the redemption date originally established by such Cox
Radio Trust to the date such applicable redemption price is actually
paid; and
- the actual payment date will be the redemption date for purposes of
calculating the applicable redemption price.
Subject to applicable law, including, without limitation, United States
federal securities law, Cox Radio or its subsidiaries may at any time and from
time to time purchase outstanding trust preferred securities by tender, in the
open market or by private agreement.
LIQUIDATION OF A COX RADIO TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED
DEBENTURES
Cox Radio will have the right at any time to dissolve a Cox Radio Trust and
cause the related junior subordinated debentures to be distributed to the
holders of the trust securities of such Cox Radio Trust in liquidation of such
Cox Radio Trust after satisfaction, or reasonable provision for satisfaction, of
liabilities to creditors of such Cox Radio Trust as required by applicable law.
Such right is subject to Cox Radio having received an opinion of counsel to the
effect that such distribution will not be a taxable event to holders of the
trust preferred securities of such Cox Radio Trust.
The applicable Cox Radio Trust shall automatically dissolve upon the first
to occur of:
1. certain events of bankruptcy, dissolution or liquidation of Cox
Radio;
2. the distribution of the related junior subordinated debentures to the
holders of the trust securities of such Cox Radio Trust, if Cox
Radio, as sponsor, has given written direction to the property
trustee to dissolve such Cox Radio Trust, which direction is optional
and, except as described above, wholly within the discretion of Cox
Radio, as sponsor;
3. the redemption of all of the trust securities of such Cox Radio
Trust;
4. expiration of the term of such Cox Radio Trust; and
5. the entry of an order for the dissolution of such Cox Radio Trust by
a court of competent jurisdiction.
If a dissolution occurs as described in paragraph (1), (2), (4) or (5)
above, the applicable Cox Radio Trust shall be liquidated by the issuer trustees
as expeditiously as the issuer trustees determine to be possible by
distributing, after satisfaction, or reasonable provision for satisfaction, of
liabilities to creditors of such Cox Radio Trust as provided by applicable law,
to the holders of the trust securities and the related junior subordinated
debentures, unless such distribution is determined by the property trustee not
to be practicable, in which event such holders will be entitled to receive out
of the assets of such Cox Radio Trust legally available for distribution to
holders, after satisfaction of liabilities to creditors of such
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Cox Radio Trust as provided by applicable law, an amount equal to the aggregate
of the liquidation amount per trust security specified in the applicable
prospectus supplement plus accumulated distributions thereon to the date of
payment. If the liquidation distribution can be paid only in part because the
applicable Cox Radio Trust has insufficient assets legally available to pay in
full the aggregate liquidation distribution, then the amounts payable directly
by such Cox Radio Trust on its trust securities shall be paid on a pro rata
basis, except that if a debenture event of default has occurred and is
continuing, the trust preferred securities of such Cox Radio Trust shall have a
priority over the trust common securities of such Cox Radio Trust in respect of
such amounts. See "-- Subordination of Trust Common Securities."
After a date is fixed for any distribution of junior subordinated
debentures to holders of the related trust securities:
- such trust securities will no longer be deemed to be outstanding;
- each registered global certificate, if any, representing such trust
securities will be exchanged for a registered global certificate
representing the junior subordinated debentures to be delivered upon such
distribution; and
- any trust securities in certificated form will be deemed to represent
junior subordinated debentures having a principal amount equal to the
liquidation amount of such trust securities, and bearing accrued interest
in an amount equal to the accumulated distributions on such trust
securities until such certificates are presented to the administrative
trustees or their agent for cancellation, whereupon Cox Radio will issue
to such holder, and the debenture trustee will authenticate, junior
subordinated debentures in certificated form.
There can be no assurance as to the market prices for the trust preferred
securities or the junior subordinated debentures that may be distributed in
exchange for such trust preferred securities if a dissolution and liquidation of
the applicable Cox Radio Trust were to occur. Accordingly, the trust preferred
securities that an investor may purchase, or the junior subordinated debentures
that the investor may receive on dissolution and liquidation of the applicable
Cox Radio Trust, may trade at a discount to the price that the investor paid to
purchase such trust preferred securities.
SUBORDINATION OF TRUST COMMON SECURITIES
Payment of distributions on, and the applicable redemption price of, trust
securities shall be made pro rata among the trust preferred securities and the
trust common securities of the applicable Cox Radio Trust based on their
respective liquidation amounts; provided, however, that if on any distribution
date or redemption date a debenture event of default has occurred and is
continuing, no payment of any distribution on, or applicable redemption price
of, any of the trust common securities of the applicable Cox Radio Trust, and no
other payment on account of the redemption, liquidation or other acquisition of
such trust common securities, shall be made unless payment in full in cash of
all accumulated distributions on all of the outstanding trust preferred
securities of such Cox Radio Trust for all distribution periods terminating on
or prior thereto, or in the case of payment of the applicable redemption price,
the full amount of such redemption price, shall have been made or provided for,
and all funds available to the property trustee shall first be applied to the
payment in full in cash of all distributions on, or applicable redemption price
of, such trust preferred securities then due and payable.
Upon the occurrence and continuance of an event of default under the
declaration of trust, Cox Radio, as the trust common securities holder of the
applicable Cox Radio Trust, will be deemed to have waived any right to act with
respect to such event of default until the effect of such event of default shall
have been cured, waived or otherwise eliminated. Until any such event of default
has been so cured, waived or otherwise eliminated, the property trustee shall
act solely on behalf of the holders of the trust preferred securities of such
Cox Radio Trust and not on behalf of Cox Radio as the trust common securities
holder, and only the holders of such trust preferred securities will have the
right to direct the property trustee to act on their behalf.
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EVENTS OF DEFAULT; NOTICE
The occurrence of a debenture event of default under the junior
subordinated debenture indenture will constitute an event of default under the
declaration of trust. Within ten business days after the occurrence of an event
of default under the declaration of trust actually known to the property
trustee, the property trustee shall transmit notice of such event of default to
the holders of the trust preferred securities of the applicable Cox Radio Trust,
the administrative trustees and Cox Radio, as sponsor, unless such event of
default shall have been cured or waived.
For a discussion of the limited circumstances in which holders of trust
preferred securities may bring a direct action against Cox Radio, see
"Description of Junior Subordinated Debentures -- Enforcement of Certain Rights
by Holders of Trust Preferred Securities."
REMOVAL OF TRUSTEES
Unless a debenture event of default has occurred and is continuing, any
issuer trustee may be removed at any time by Cox Radio as the trust common
securities holder of the applicable Cox Radio Trust. If a debenture event of
default has occurred and is continuing, the property trustee and the Delaware
trustee may be removed at such time only by the holders of a majority in
liquidation amount of the outstanding trust preferred securities of the
applicable Cox Radio Trust. In no event will the holders of the trust preferred
securities have the right to vote to appoint, remove or replace the
administrative trustees, which voting rights are vested exclusively in Cox Radio
as the trust common securities holder. No resignation or removal of an issuer
trustee, and no appointment of a successor trustee, shall be effective until the
acceptance of appointment by the successor trustee in accordance with the
provisions of the declaration of trust.
MERGER OR CONSOLIDATION OF TRUSTEES
Any person into which the property trustee, the Delaware trustee or any
administrative trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any person resulting from any merger,
conversion or consolidation to which such issuer trustee shall be a party, or
any person succeeding to all or substantially all the corporate trust business
of such issuer trustee, shall be the successor of such issuer trustee under the
declaration of trust, provided such person shall be otherwise qualified and
eligible.
MERGERS, CONVERSIONS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF A COX
RADIO TRUST
The applicable Cox Radio Trust may not merge with or into, convert into,
consolidate, amalgamate or be replaced by, or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to any
corporation or other person, except as described below or as otherwise described
under "-- Liquidation of a Cox Radio Trust and Distribution of Junior
Subordinated Debentures." A Cox Radio Trust may, at the request of Cox Radio, as
sponsor, with the consent of the administrative trustees but without the consent
of the holders of its trust preferred securities, merge with or into, convert
into, consolidate, amalgamate or be replaced by or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to a trust
organized as such under the laws of any State; provided that:
- such successor entity either:
- expressly assumes all of the obligations of such Cox Radio Trust with
respect to the trust securities of such Cox Radio Trust; or
- substitutes for the trust securities of such Cox Radio Trust other
securities having substantially the same terms as such trust securities
so long as the successor securities rank the same as such trust
securities rank in priority with respect to distributions and payments
upon liquidation, redemption and otherwise;
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- Cox Radio expressly appoints a trustee of such successor entity
possessing the same powers and duties as the property trustee with
respect to the related junior subordinated debentures;
- the successor securities are listed, or any successor securities will be
listed upon notification of issuance, on each national securities
exchange or other organization on which the trust securities of such Cox
Radio Trust are then listed, if any;
- such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the trust securities,
including any successor securities, of such Cox Radio Trust or the
related junior subordinated debentures to be downgraded or placed under
surveillance or review by any nationally recognized statistical rating
organization;
- such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the trust securities,
including any successor securities, of such Cox Radio Trust in any
material respect, other than any dilution of such holders' interests in
the new entity;
- such successor entity has a purpose substantially identical to that of
such Cox Radio Trust;
- prior to such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease, Cox Radio has received an
opinion from independent counsel to such Cox Radio Trust experienced in
such matters to the effect that:
- such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the trust securities,
including any successor securities, of such Cox Radio Trust in any
material respect, other than any dilution of such holders' interests in
the new entity; and
- following such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither such Cox Radio Trust
nor such successor entity will be required to register as an investment
company under the Investment Company Act of 1940, as amended; and
- Cox Radio or any permitted successor or assignee owns all of the common
securities of such successor entity and guarantees the obligations of
such successor entity under the successor securities at least to the
extent provided by the preferred securities guarantee and the common
securities guarantee for the benefit of the owner of the common
securities of such Cox Radio Trust.
Notwithstanding the foregoing, such Cox Radio Trust shall not, except with the
consent of each holder of its trust securities, consolidate, amalgamate, merge
with or into, or be replaced by or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it, if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause such Cox Radio Trust or the successor
entity not to be classified as a grantor trust for United States federal income
tax purposes.
VOTING RIGHTS; AMENDMENT OF A DECLARATION OF TRUST
Except as provided below and under "-- Mergers, Conversions,
Consolidations, Amalgamations or Replacements of a Cox Radio Trust" and
"Description of Preferred Securities Guarantees -- Amendments and Assignment"
and as otherwise required by law and the applicable declaration of trust, the
holders of trust preferred securities will have no voting rights.
The declaration of trust may be amended from time to time by Cox Radio, the
property trustee and the administrative trustees, without the consent of the
holders of the trust securities of the applicable Cox Radio Trust:
- to cure any ambiguity, correct or supplement any provisions in such
declaration of trust that may be inconsistent with any other provision,
or to make any other provisions with respect to matters or questions
arising under such declaration of trust, which shall not be inconsistent
with the other provisions of such declaration of trust; or
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- to modify, eliminate or add to any provisions of such declaration of
trust to such extent as shall be necessary to ensure that such Cox Radio
Trust will be classified for United States federal income tax purposes as
a grantor trust at all times that any of its trust securities are
outstanding or to ensure that such Cox Radio Trust will not be required
to register as an investment company under the Investment Company Act;
provided, however, that in each case, such action shall not materially adversely
affect in any material respect the interests of the holders of such trust
securities.
A declaration of trust may be amended by the issuer trustees and Cox Radio:
- with the consent of holders of a majority in liquidation amount of the
outstanding trust securities of the applicable Cox Radio Trust; and
- upon receipt by the issuer trustees of an opinion of counsel experienced
in such matters to the effect that such amendment or the exercise of any
power granted to the issuer trustees in accordance with such amendment
will not affect such Cox Radio Trust's status as a grantor trust for
United States federal income tax purposes or such Cox Radio Trust's
exemption from status as an investment company under the Investment
Company Act;
provided, however, that, without the consent of each holder of such trust
securities, such declaration of trust may not be amended to:
- change the distribution rate or manner of calculation of the distribution
rate, amount, timing or currency or otherwise adversely affect the method
of any required payment;
- change the purpose of the applicable Cox Radio Trust;
- authorize the issuance of any additional beneficial interests in such Cox
Radio Trust;
- change the conversion, exchange or redemption provisions;
- change the conditions precedent for Cox Radio to elect to dissolve such
Cox Radio Trust and distribute the related junior subordinated debentures
to the holders of such trust securities;
- change the liquidation distribution or other provisions relating to the
distribution of amounts payable upon the dissolution and liquidation of
such Cox Radio Trust;
- affect the limited liability of any holder of such trust securities; or
- restrict the right of a holder of such trust securities to institute suit
for the enforcement of any required payment on or after the due date
therefor or for the conversion or exchange of such trust securities in
accordance with their terms.
So long as any junior subordinated debentures are held by the property
trustee, the issuer trustees shall not:
- direct the time, method and place of conducting any proceeding for any
remedy available to such debenture trustee, or execute any trust or power
conferred on the trustee, with respect to the junior subordinated
debentures;
- waive certain past defaults under the junior subordinated debenture
indenture;
- exercise any right to rescind or annul a declaration of acceleration of
the maturity of the principal of such junior subordinated debentures; or
- consent to any amendment, modification or termination of the junior
subordinated debenture indenture or such junior subordinated debentures
where such consent shall be required, without, in each case, obtaining
the prior approval of the holders of a majority in liquidation amount of
all outstanding trust preferred securities of the applicable Cox Radio
Trust;
provided, however, that where a consent under the junior subordinated debenture
indenture would require the consent of each holder affected thereby, no such
consent shall be given by the property trustee without
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the prior approval of each holder of the related trust preferred securities. The
issuer trustees shall not revoke any action previously authorized or approved by
a vote of the holders of trust preferred securities except by subsequent vote of
such holders. The property trustee shall notify each holder of trust preferred
securities of any notice of default with respect to the related junior
subordinated debentures. In addition to obtaining approvals of holders of trust
preferred securities referred to above, prior to taking any of the foregoing
actions, the issuer trustees shall obtain an opinion of counsel experienced in
such matters to the effect that the applicable Cox Radio Trust will not be
classified as an association taxable as a corporation for United States federal
income tax purposes on account of such action.
Any required approval of holders of trust preferred securities may be given
at a meeting of such holders convened for such purpose or pursuant to written
consent. The administrative trustees will cause a notice of any meeting at which
holders of trust preferred securities are entitled to vote to be given to each
holder of record of trust preferred securities in the manner set forth in the
applicable declaration of trust.
Notwithstanding that holders of trust preferred securities are entitled to
vote or consent under any of the circumstances referred to above, any trust
preferred securities that are owned by Cox Radio or any affiliate of Cox Radio
shall, for purposes of such vote or consent, be treated as if they were not
outstanding.
GLOBAL TRUST PREFERRED SECURITIES
If specified in the prospectus supplement, trust preferred securities may
be represented by one or more global certificates deposited with, or on behalf
of, The Depository Trust Company, or other depositary identified in such
prospectus supplement, or a nominee thereof, in each case for credit to an
account of a participant in The Depository Trust Company, or other depositary.
The identity of the depositary and the specific terms of the depositary
arrangements with respect to the trust preferred securities to be represented by
one or more global certificates will be described in the prospectus supplement.
However, unless otherwise specified in the prospectus supplement, The Depository
Trust Company will be the depositary and the depositary arrangements described
with respect to the debt securities will apply to such trust preferred
securities as well, except all references to Cox Radio shall include Cox Radio
Trust and all references to the applicable indenture will refer to the
applicable declaration of trust. See "Description of Debt Securities -- Global
Securities."
PAYMENT AND PAYING AGENT
Payments in respect of any global certificate representing trust preferred
securities shall be made to Cede & Co. as nominee of The Depository Trust
Company, or other applicable depositary or its nominee, which shall credit the
relevant accounts at The Depository Trust Company or such other depositary on
the applicable payment dates, while payments in respect of trust preferred
securities in certificated form shall be made by check mailed to the address of
the holder entitled thereto as such address shall appear on the register. The
paying agent shall initially be the property trustee and any co-paying agent
chosen by the property trustee and acceptable to the administrative trustees and
Cox Radio. The paying agent shall be permitted to resign as paying agent upon 30
days' prior written notice to the property trustee, the administrative trustees
and Cox Radio. In the event that the property trustee shall no longer be the
paying agent, the administrative trustees shall appoint a successor, which shall
be a bank or trust company acceptable to the administrative trustees and Cox
Radio, to act as paying agent.
REGISTRAR AND TRANSFER AGENT
The property trustee will act as registrar and transfer agent for the trust
preferred securities.
Registration of transfers of trust preferred securities will be effected
without charge by or on behalf of the applicable Cox Radio Trust, but upon
payment of any tax or other governmental charges that may be imposed in
connection with any transfer or exchange. A Cox Radio Trust will not be required
to register or cause to be registered the transfer of its trust preferred
securities after they have been converted, exchanged, redeemed or called for
redemption.
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INFORMATION CONCERNING THE PROPERTY TRUSTEE
The property trustee, other than during the occurrence and continuance of
an event of default under the applicable declaration of trust, will undertake to
perform only such duties as are specifically set forth in such declaration of
trust and, during the continuance of such event of default, must exercise the
same degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to the foregoing, the property
trustee will not be under any obligation to exercise any of the powers vested in
it by such declaration of trust at the request of any holder of the related
trust securities unless it is offered reasonable indemnity against the costs,
expenses and liabilities that might be incurred thereby. If no such event of
default has occurred and is continuing and the property trustee is required to
decide between alternative causes of action, construe ambiguous provisions in
such declaration of trust or is unsure of the application of any provision of
such declaration of trust, and the matter is not one on which holders of trust
preferred securities or trust common securities are entitled under such
declaration of trust to vote, then the property trustee shall take such action
as is directed by Cox Radio and if not so directed, shall take such action as it
deems advisable and in the best interests of the holders of the related trust
securities and will have no liability except for its own bad faith, negligence
or willful misconduct.
MISCELLANEOUS
The administrative trustees are authorized and directed to conduct the
affairs of and to operate the applicable Cox Radio Trust in such a way that:
- such Cox Radio Trust will not be deemed to be an investment company
required to be registered under the Investment Company Act;
- such Cox Radio Trust will be classified as a grantor trust for United
States federal income tax purposes; and
- the related junior subordinated debentures will be treated as
indebtedness of Cox Radio for United States federal income tax purposes.
Cox Radio and the administrative trustees are authorized to take any
action, not inconsistent with applicable law, the certificate of trust of the
applicable Cox Radio Trust or the applicable declaration of trust, that the
administrative trustees determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not materially
adversely affect the interests of the holders of the related trust securities.
Holders of trust preferred securities will not have any preemptive or
similar rights.
A Cox Radio Trust may not borrow money, issue debt, execute mortgages or
pledge any of its assets.
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DESCRIPTION OF PREFERRED SECURITIES GUARANTEES
A preferred securities guarantee will be executed and delivered by Cox
Radio concurrently with the issuance by a Cox Radio Trust of its trust preferred
securities for the benefit of the holders from time to time of such trust
preferred securities and will be held for such holders by The Bank of New York,
as preferred securities guarantee trustee. Each preferred securities guarantee
has been qualified as an indenture under the Trust Indenture Act and is subject
to, and governed by, the Trust Indenture Act. This summary of certain terms and
provisions of a preferred securities guarantee does not purport to be complete
and is subject to, and qualified in its entirety by reference to, all of the
provisions of such preferred securities guarantee, including the definitions
therein of certain terms, and those made a part of such preferred securities
guarantee by the Trust Indenture Act.
GENERAL
Cox Radio will irrevocably agree to pay in full, to the extent set forth
herein, the guarantee payments to the holders of the related trust preferred
securities, as and when due, regardless of any defense, right of set-off or
counterclaim that the applicable Cox Radio Trust may have or assert other than
the defense of payment. The following payments, which are referred to as
guarantee payments, with respect to trust preferred securities, to the extent
not paid by or on behalf of the applicable Cox Radio Trust, will be subject to
the preferred securities guarantee:
- any accumulated distributions required to be paid on such trust preferred
securities, to the extent that such Cox Radio Trust has funds legally
available therefor at such time;
- the applicable redemption price with respect to such trust preferred
securities called for redemption, to the extent that such Cox Radio Trust
has funds legally available therefor at such time; or
- upon a voluntary or involuntary dissolution and liquidation of such Cox
Radio Trust, other than in connection with the distribution of the
related junior subordinated debentures to holders of such trust preferred
securities or the redemption, conversion or exchange of the trust
preferred securities, the lesser of:
- the amounts due upon the dissolution and liquidation of such Cox Radio
Trust, to the extent that such Cox Radio Trust has funds legally
available therefor at the time; and
- the amount of assets of such Cox Radio Trust remaining available for
distribution to holders of its trust preferred securities after
satisfaction of liabilities to creditors of such Cox Radio Trust as
required by applicable law.
Cox Radio's obligation to make a guarantee payment may be satisfied by
direct payment of the required amounts by Cox Radio to the holders of the trust
preferred securities entitled thereto or by causing the applicable Cox Radio
Trust to pay such amounts to such holders.
Cox Radio will, through the preferred securities guarantee, the declaration
of trust, the related junior subordinated debentures and the junior subordinated
debenture indenture, taken together, fully, irrevocably and unconditionally
guarantee all of the applicable Cox Radio Trust's obligations under its trust
preferred securities. No single document standing alone or operating in
conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of a Cox
Radio Trust's obligations under its trust preferred securities.
RANKING
Unless otherwise specified in the applicable prospectus supplement, each
preferred securities guarantee will constitute an unsecured obligation of Cox
Radio and will rank:
- subordinate and junior in right of payment to all other liabilities of
Cox Radio, including all senior debt securities, any subordinated debt
securities and the junior subordinated debentures, except those made
ratable or subordinate by their terms; and
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- senior to all capital stock now or hereafter issued by Cox Radio and to
any guarantee now or hereafter entered into by Cox Radio in respect of
any of its capital stock.
The declaration of trust will provide that each holder of trust preferred
securities by acceptance thereof agrees to the subordination provisions and
other terms of the related preferred securities guarantee. The preferred
securities guarantee will rank subordinate to, or equally with, all other
guarantees to be issued by Cox Radio with respect to securities of other trusts
or other entities to be established by Cox Radio that are similar to a Cox Radio
Trust.
The preferred securities guarantees will not limit the amount of secured or
unsecured debt, including senior indebtedness as defined in the junior
subordinated debenture indenture, that may be incurred by Cox Radio or any of
its subsidiaries.
PREFERRED SECURITIES GUARANTEE OF PAYMENT
Each preferred securities guarantee will constitute a guarantee of payment
and not of collection. In other words, the guaranteed party may institute a
legal proceeding directly against Cox Radio to enforce its rights under such
preferred securities guarantee without first instituting a legal proceeding
against any other person or entity. A preferred securities guarantee will not be
discharged except by payment of the related preferred securities guarantee
payments in full to the extent not paid by the applicable Cox Radio Trust or
upon distribution of its trust preferred securities to the holders of the
related junior subordinated debentures.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not materially adversely affect
the rights of holders of the related trust preferred securities, in which case
no approval will be required, the applicable preferred securities guarantee may
not be amended without the prior approval of the holders of a majority of the
liquidation amount of such outstanding trust preferred securities. The manner of
obtaining any such approval will be as set forth under "Description of Trust
Preferred Securities -- Voting Rights; Amendment of a Declaration of Trust." All
guarantees and agreements contained in a preferred securities guarantee shall
bind the successors, assigns, receivers, trustees and representatives of Cox
Radio and shall inure to the benefit of the holders of the related trust
preferred securities then outstanding.
EVENTS OF DEFAULT
An event of default under a preferred securities guarantee will occur upon
the failure of Cox Radio to perform any of its payment or other obligations
thereunder, provided that, except with respect to a default in respect of any
preferred securities guarantee payment, Cox Radio shall have received notice of
such default and shall not have cured such default within 60 days of such
receipt. The holders of a majority in liquidation amount of the related trust
preferred securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the preferred securities
guarantee trustee in respect of the applicable preferred securities guarantee or
to direct the exercise of any trust or power conferred upon the preferred
securities guarantee trustee under such preferred securities guarantee.
If the preferred securities guarantee trustee fails to enforce a preferred
securities guarantee, any holder of the related trust preferred securities may
institute a legal proceeding directly against Cox Radio to enforce its rights
under such preferred securities guarantee without first instituting a legal
proceeding against the applicable Cox Radio Trust, the preferred securities
guarantee trustee or any other person or entity.
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TERMINATION
A preferred securities guarantee will terminate and be of no further force
and effect upon:
- full payment of the applicable redemption price of the related trust
preferred securities;
- full payment of all amounts due upon the dissolution and liquidation of
the applicable Cox Radio Trust; or
- upon the conversion or exchange of all of the related trust preferred
securities, whether upon distribution of junior subordinated debentures
to the holders of such trust preferred securities or otherwise.
A preferred securities guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of the related trust
preferred securities must restore payment of any sums paid under such trust
preferred securities or such preferred securities guarantee.
GOVERNING LAW
Each preferred securities guarantee will be governed by and construed in
accordance with the laws of the State of New York.
INFORMATION CONCERNING THE PREFERRED SECURITIES GUARANTEE TRUSTEE
The preferred securities guarantee trustee, other than during the
occurrence and continuance of a default by Cox Radio in performance of a
preferred securities guarantee, will undertake to perform only such duties as
are specifically set forth in the preferred securities guarantee and, during the
continuance of such default, must exercise the same degree of care and skill as
a prudent person would exercise or use in the conduct of his or her own affairs.
Subject to the foregoing, the preferred securities guarantee trustee will not be
under any obligation to exercise any of the powers vested in it by a preferred
securities guarantee at the request of any holder of the related trust preferred
securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that might be incurred thereby.
LIMITED PURPOSE OF A COX RADIO TRUST
The trust preferred securities will represent preferred beneficial
interests in the applicable Cox Radio Trust, and each Cox Radio Trust exists for
the sole purpose of issuing and selling its trust securities, using the proceeds
from the sale of its trust securities to acquire the related junior subordinated
debentures of Cox Radio and engaging in only those other activities necessary,
advisable or incidental thereto.
RIGHTS UPON DISSOLUTION
Unless the junior subordinated debentures are distributed to holders of the
related trust securities, upon any voluntary or involuntary dissolution and
liquidation of the applicable Cox Radio Trust, after satisfaction of the
liabilities of creditors of such Cox Radio Trust as required by applicable law,
the holders of such trust securities will be entitled to receive, out of assets
held by such Cox Radio Trust, the liquidation distribution in cash. See
"Description of Trust Preferred Securities -- Liquidation of a Cox Radio Trust
and Distribution of Junior Subordinated Debentures." Upon any voluntary or
involuntary liquidation or bankruptcy of Cox Radio, the property trustee, as
holder of the junior subordinated debentures, would be a creditor of Cox Radio,
subordinated in right of payment to all senior indebtedness as set forth in the
junior subordinated debenture indenture, but entitled to receive payment in full
of principal and premium, if any, and interest in respect of such junior
subordinated debentures, before any stockholders of Cox Radio receive payments
or distributions.
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RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES, THE CORRESPONDING
JUNIOR SUBORDINATED DEBENTURES OR OTHER DEBT SECURITIES AND THE
PREFERRED SECURITIES GUARANTEES
Full and Unconditional Guarantee. Cox Radio will irrevocably guarantee
payments of distributions and other amounts due on the trust preferred
securities to the extent the applicable Cox Radio Trust has funds available for
the payment of the distributions as and to the extent set forth under
"Description of Preferred Securities Guarantees." Taken together, Cox Radio's
obligations under the junior subordinated debentures, the securities resolution,
the junior subordinated debenture indenture, the declaration of trust and the
preferred securities guarantee agreements provide, in the aggregate, a full,
irrevocable and unconditional guarantee of payments of distributions and other
amounts due on the trust preferred securities. No single document standing alone
or operating in conjunction with fewer than all of the other documents
constitutes the full guarantee. It is only the combined operation of these
documents that has the effect of providing a full, irrevocable and unconditional
guarantee of the applicable Cox Radio Trust's obligations under the trust
preferred securities.
If and to the extent that Cox Radio does not make payments on the junior
subordinated debentures or other debt securities, the applicable Cox Radio Trust
will not pay distributions or other amounts due on its trust preferred
securities. A preferred securities guarantee does not cover payment of
distributions when such Cox Radio Trust does not have sufficient funds to pay
the distributions. In that event, the remedy for a holder of trust preferred
securities is to institute a legal proceeding directly against Cox Radio for
enforcement of payment of the distributions to such holder.
Sufficiency of Payments. As long as all payments are made when due on the
junior subordinated debentures or other debt securities, as the case may be,
those payments will be sufficient to cover distributions and other payments due
on the trust preferred securities. This is primarily because:
- the aggregate principal amount of the junior subordinated debentures or
other debt securities, as the case may be, will be equal to the sum of
the aggregate stated liquidation amount of the trust preferred securities
and trust common securities;
- the interest rate and interest and other payment dates on the junior
subordinated debentures to other debt securities, as the case may be,
will match the distribution rate and distribution and other payment dates
for the trust preferred securities;
- Cox Radio, as borrower, has promised to pay any and all costs, expenses
and liabilities of the applicable Cox Radio Trust except such Cox Radio
Trust's obligations under its trust preferred securities; and
- the declaration of trust provides that the applicable Cox Radio Trust
will not engage in any activity that is not consistent with the limited
purposes of such Cox Radio Trust.
Cox Radio has the right to set-off any payment Cox Radio is otherwise
required to make under the junior subordinated debenture indenture if and to the
extent Cox Radio has already made, or is concurrently making, a payment under
the applicable preferred securities guarantee agreement.
Enforcement Rights of Holders of Trust Preferred Securities. A holder of a
trust preferred security may institute a legal proceeding directly against Cox
Radio to enforce its rights under the applicable preferred securities guarantee
agreement without first instituting a legal proceeding against the preferred
securities guarantee trustee, the applicable Cox Radio Trust or anyone else.
Cox Radio's default or event of default under any other senior or
subordinated indebtedness would not necessarily constitute a trust event of
default. However, in the event of payment defaults under, or acceleration of,
Cox Radio's senior or subordinated indebtedness, the subordination provisions of
the applicable securities resolution will provide that no payments may be made
in respect of the junior subordinated debentures or other debt securities until
the senior or subordinated indebtedness has been paid in full or any payment
default thereunder has been cured or waived. Cox Radio's failure to make
required payments on any junior subordinated debentures or other debt securities
would constitute a trust event of default.
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Limited Purpose of a Cox Radio Trust. The applicable Cox Radio Trust's
trust preferred securities evidence undivided beneficial ownership interests in
the assets of the applicable Cox Radio Trust, and each Cox Radio Trust exists
for the sole purposes of issuing its trust preferred securities and trust common
securities, investing the proceeds in junior subordinated debentures or other
debt securities and engaging in only those other activities necessary,
convenient or incidental to those purposes. A principal difference between the
rights of a holder of a trust preferred security and a holder of a corresponding
junior subordinated debenture or other debt securities is that a holder of a
junior subordinated debenture or other debt securities is entitled to receive
from Cox Radio the principal amount of and interest accrued on the corresponding
junior subordinated debentures or other debt securities, while a holder of trust
preferred securities is entitled to receive distributions from the applicable
Cox Radio Trust, or from Cox Radio under the applicable preferred securities
guarantee agreement, if and to the extent the applicable Cox Radio Trust has
funds available for the payment of the distributions.
Rights Upon Dissolution. Upon any voluntary or involuntary dissolution of
a Cox Radio Trust involving the liquidation of the junior subordinated
debentures or other debt securities, the holders of the trust preferred
securities will be entitled to receive the liquidation distribution in cash, out
of assets of such Cox Radio Trust and after satisfaction of creditors of such
Cox Radio Trust as provided by applicable law. If Cox Radio becomes subject to
any voluntary or involuntary liquidation or bankruptcy, the property trustee, as
holder of the junior subordinated debentures or other debt securities, would be
one of Cox Radio's junior subordinated creditors. The property trustee would be
subordinated in right of payment to all of Cox Radio's senior indebtedness and
subordinated indebtedness, but it would be entitled to receive payment in full
of principal and interest before Cox Radio's stockholders receive payments or
distributions. Cox Radio is the guarantor under the preferred securities
guarantee agreements and pursuant to the junior subordinated debenture
indenture, as borrower, has agreed to pay all costs, expenses and liabilities of
the applicable Cox Radio Trust other than the applicable Cox Radio Trust's
obligations to the holders of the trust preferred securities. Accordingly, in
the event of Cox Radio's liquidation or bankruptcy the positions of a holder of
trust preferred securities and of a holder of junior subordinated debentures or
other debt securities are expected to be substantially the same relative to Cox
Radio's other creditors and to Cox Radio's stockholders.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
Cox Radio may issue stock purchase contracts, representing contracts
obligating holders to purchase from Cox Radio and Cox Radio to sell to the
holders, a specified number of shares of Class A common stock at a future date
or dates. The price per share of Class A common stock may be fixed at the time
the stock purchase contracts are issued or may be determined by reference to a
specific formula set forth in the stock purchase contracts. The stock purchase
contracts may be issued separately or as a part of units, which are referred to
as stock purchase units, consisting of a stock purchase contract and, as
security for the holder's obligations to purchase the Class A common stock under
stock purchase contracts, either:
- senior debt securities, subordinated debt securities or junior
subordinated debt securities of Cox Radio;
- debt obligations of third parties, including U.S. Treasury securities; or
- preferred securities of a Cox Radio Trust.
The stock purchase contracts may require Cox Radio to make periodic
payments to the holders of the stock purchase units or vice versa, and such
payments may be unsecured or prefunded on some basis. The stock purchase
contracts may require holders to secure their obligations thereunder in a
specified manner and in certain circumstances Cox Radio may deliver newly issued
prepaid stock purchase contracts, which are referred to as prepaid securities,
upon release to a holder of any collateral securing such holder's obligations
under the original stock purchase contract.
The applicable prospectus supplement will describe the terms of any stock
purchase contracts or stock purchase units and, if applicable, prepaid
securities. The description in the prospectus supplement will not purport to be
complete and will be qualified in its entirety by reference to the stock
purchase contracts, the
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collateral arrangements and depositary arrangements, if applicable, relating to
such stock purchase contracts or stock purchase units and, if applicable, the
prepaid securities and the document pursuant to which such prepaid securities
will be issued.
PLAN OF DISTRIBUTION
Cox Radio and the Cox Radio Trusts may sell the securities to one or more
underwriters or dealers for public offering and sale by them, or it may sell the
securities to investors directly or through agents. The accompanying prospectus
supplement will set forth the terms of the offering and the method of
distribution and will identify any firms acting as underwriters, dealers or
agents in connection with the offering, including:
- the name or names of any underwriters;
- the purchase price of the securities and the proceeds to Cox Radio or the
Cox Radio Trusts from the sale;
- any underwriting discounts and other items constituting underwriters'
compensation;
- any public offering price;
- any discounts or concessions allowed or reallowed or paid to dealers; and
- any securities exchange or market on which the securities offered in the
prospectus supplement may be listed.
Only those underwriters identified in such prospectus supplement are deemed to
be underwriters in connection with the securities offered in the prospectus
supplement.
We may distribute the securities from time to time in one or more
transactions at a fixed price or prices, which may be changed, or at prices
determined as the prospectus supplement specifies. We may sell securities
through a rights offering, forward contracts or similar arrangements. In
connection with the sale of the securities, underwriters, dealers or agents may
be deemed to have received compensation from Cox Radio in the form of
underwriting discounts or commissions and also may receive commissions from
securities purchasers for whom they may act as agent. Underwriters may sell the
securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters or
commissions from the purchasers for whom they may act as agent. Some of the
underwriters, dealers or agents who participate in the securities distribution
may engage in other transactions with, and perform other services for, Cox Radio
and its subsidiaries in the ordinary course of business.
Any underwriting discounts or other compensation which we pay to
underwriters or agents in connection with the securities offering, and any
discounts, concessions or commissions which underwriters allow to dealers, are
set forth in the prospectus supplement. Underwriters, dealers and agents
participating in the securities distribution may be deemed to be underwriters,
and any discounts and commissions they receive and any profit they realize on
the resale of the securities may be deemed to be underwriting discounts and
commissions under the Securities Act of 1933, as amended. Underwriters and their
controlling persons, dealers and agents may be entitled, under agreements
entered into with Cox Radio and the Cox Radio Trusts, to indemnification against
and contribution toward specific civil liabilities, including liabilities under
the Securities Act.
LEGAL MATTERS
Dow, Lohnes & Albertson, PLLC, of Washington, D.C., and Richards, Layton &
Finger, P.A., Wilmington, Delaware, will pass upon the validity of the
securities offered in the prospectus supplement for Cox Radio and the Cox Radio
Trusts, respectively.
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EXPERTS
The consolidated financial statements and the related financial statement
schedule incorporated in this prospectus by reference from Cox Radio's Annual
Report on Form 10-K for the year ended December 31, 1999, as amended, have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated by reference, and have been so incorporated in
reliance upon the report of such firm given upon their authority as experts in
accounting and auditing.
The combined financial statements of WEDR-FM, Miami, Florida; WFOX-FM,
Atlanta, Georgia; WAPE-FM, Jacksonville, Florida; WFYV-FM, Jacksonville,
Florida; WKQL-FM, Jacksonville, Florida; WMXQ-FM, Jacksonville, Florida;
WOKV-AM, Jacksonville, Florida; WBWL-AM, Jacksonville, Florida; WPLR-FM, New
Haven, Connecticut; WKHL-FM, Stamford-Norwalk, Connecticut; WSTC-AM
Stamford-Norwalk, Connecticut; WEFX-FM, Stamford-Norwalk, Connecticut; and
WNLK-AM, Stamford-Norwalk, Connecticut incorporated in this prospectus by
reference from Cox Radio's current report on Form 8-K, dated August 30, 1999 and
filed April 19, 2000, have been audited by Deloitte & Touche, LLP, independent
auditors, as stated in their report, which is incorporated herein by reference,
and have been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
The combined financial statements of WAPE-FM, Jacksonville, Florida;
WFYV-FM, Jacksonville, Florida; WKQL-FM, Jacksonville, Florida; WMXQ-FM,
Jacksonville, Florida; WOKV-AM, Jacksonville, Florida; WBWL-AM Jacksonville,
Florida; WPLR-FM, New Haven, Connecticut; WKHL-FM, Stamford-Norwalk,
Connecticut; WSTC-AM, Stamford-Norwalk, Connecticut; WEFX-FM, Stamford-Norwalk,
Connecticut; and WNLK-AM, Stamford-Norwalk, Connecticut incorporated in this
prospectus by reference from Cox Radio's current report on Form 8-K, dated
August 30, 1999 and filed April 19, 2000, have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report, which is incorporated
herein by reference, and have been so incorporated in reliance upon the report
of such firm given upon their authority as experts in accounting and auditing.
The financial statements of Marlin Broadcasting, Inc. incorporated in this
prospectus by reference from Cox Radio's current report on Form 8-K, dated
August 30, 1999 and filed April 19, 2000, have been audited by Ernst & Young
LLP, independent auditors, as stated in their report, which is incorporated
herein by reference, and have been so incorporated in reliance upon the report
of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
Cox Radio is subject to the informational requirements of the Securities
Exchange Act and files reports, proxy statements and other information with the
SEC. Cox Radio's SEC filings are available over the Internet at the SEC's web
site at http://www.sec.gov. You also may read and copy any document Cox Radio
files at the SEC's public reference rooms in Washington, D.C., New York and
Chicago or obtain copies of such materials by mail. Please call the SEC at
1-800-SEC-0330 for more information on the public reference rooms and their copy
charges, as well as the Public Reference Section's charges for mailing copies of
the documents Cox Radio has filed.
You can also inspect and copy any of our SEC filings at the offices of the
New York Stock Exchange, Inc., located at 20 Broad Street, New York, New York,
10005.
INFORMATION INCORPORATED BY REFERENCE
Cox Radio filed the following documents with the SEC. SEC rules permit Cox
Radio to incorporate these filings by reference into this prospectus. By
incorporating our SEC filings by reference they are made a part of this
prospectus.
- Annual Report on Form 10-K for the year ended December 31, 1999;
- Annual Report on Form 10-K/A (Amendment No. 1) for the year ended
December 31, 1999;
44
<PAGE> 48
- Current Report on Form 8-K, dated August 30, 1999 and filed April 19,
2000; and
- Registration Statement on Form 8-A.
All documents which Cox Radio will file with the SEC, under the terms of
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, after
the date of this prospectus and prior to the termination of any offering of
securities offered by this prospectus shall be deemed to be incorporated by
reference in, and to be a part of, this prospectus from the date such documents
are filed. Cox Radio's SEC file number for Securities Exchange Act documents is
1-12187. Cox Radio will provide without charge, to any person who receives a
copy of this prospectus and the accompanying prospectus supplement, upon such
recipient's written or oral request, a copy of any document this prospectus
incorporates by reference, other than exhibits to such incorporated documents,
unless such exhibits are specifically incorporated by reference in such
incorporated document. Requests should be directed to:
Richard Jacobson
Vice President and Treasurer
Cox Radio, Inc.
1400 Lake Hearn Drive
Atlanta, Georgia 30319
Telephone: (404) 843-5000
Any statement contained in this prospectus or in a document incorporated
in, or deemed to be incorporated by reference to, this prospectus shall be
deemed to be modified or superseded, for purposes of this prospectus, to the
extent that a statement contained in:
- the prospectus;
- the accompanying prospectus supplement; or
- any other subsequently filed document which also is incorporated in, or
is deemed to be incorporated by reference to, this prospectus;
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
Cox Radio has not included or incorporated by reference separate financial
statements of the Cox Radio Trusts into this prospectus. Cox Radio does not
consider such financial statements to be material to holders of the trust
preferred securities of the Cox Radio Trusts because:
- all of the voting securities of the Cox Radio Trusts will be owned,
directly or indirectly, by Cox Radio, a reporting company under the
Securities Exchange Act of 1934;
- each of the Cox Radio Trusts is a special purpose entity, has no
operating history, has no independent operations and is not engaged in,
and does not propose to engage in, any activity other than issuing
securities representing undivided beneficial interests in the assets of
such Cox Radio Trust and investing the proceeds thereof in junior
subordinated debentures or other debt securities issued by Cox Radio; and
- Cox Radio's obligations described in this prospectus and in any
accompanying prospectus supplement under the declaration of trust of a
Cox Radio Trust, the preferred securities guarantee issued by Cox Radio
with respect to the trust preferred securities issued by such Cox Radio
Trust, the debt securities or junior subordinated debentures of Cox Radio
purchased by the Cox Radio Trusts and the applicable indenture pursuant
to which such debt securities or junior subordinated debentures are
issued, taken together, constitute direct obligations of Cox Radio and a
full and unconditional guarantee of the trust preferred securities of
each such Cox Radio Trust.
45
<PAGE> 49
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following are the expenses of issuance and distribution of the
securities registered hereunder on Form S-3, other than underwriting discounts
and commissions. All amounts except the registration fee are estimated.
<TABLE>
<S> <C>
Registration fee............................................ $198,000
Rating Agency fees.......................................... 50,000
Legal fees and expenses..................................... 150,000
Accounting fees and expenses................................ 250,000
Printing and engraving expenses............................. 100,000
Trustee's fees.............................................. 60,000
Miscellaneous............................................... 92,000
--------
Total............................................. $900,000
========
</TABLE>
All of the above expenses have been or will be paid by Cox Radio.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(i) for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the DGCL (providing for liability of directors for unlawful payment of
dividends or unlawful stock purchases or redemptions), or (iv) for any
transaction from which a director derived an improper personal benefit. Cox
Radio's Amended and Restated Certificate of Incorporation contains a provision
which eliminates the liability of directors to the extent permitted by Section
102(b)(7) of the DGCL.
Reference is made to Section 145 of the DGCL, which provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation (a "derivative action")),
if they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, by-laws,
disinterested director vote, stockholder vote, agreement or otherwise. The
Amended and Restated Certificate of Incorporation of Cox Radio provides that Cox
Radio shall indemnify its directors and officers to the fullest extent permitted
by Delaware law.
Each declaration of trust provides that no trustee, affiliate of any
trustee or any officers, directors, stockholders, members, partners, employees,
representatives or agents of any trustee or any employee or agent of a Cox Radio
Trust or its affiliates, each referred to as an indemnified person, shall be
liable, responsible or accountable in damages or otherwise to any employee or
agent of a Cox Radio Trust or its affiliates or any officers, directors,
stockholders, employees, representatives or agents of Cox Radio or its
affiliates, or to any holders of trust securities of a Cox Radio Trust for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such indemnified person in good faith on behalf
II-1
<PAGE> 50
of a Cox Radio Trust and in a manner such indemnified person reasonably believed
to be within the scope of the authority conferred on such indemnified person by
the declaration of trust of a Cox Radio Trust or by law, except that an
indemnified person shall be liable for any such loss, damage or claim incurred
by reason of such indemnified person's gross negligence (or, in the case of the
property trustee of a Cox Radio Trust, negligence) or willful misconduct with
respect to such acts or omissions. The declaration of trust also provides that,
to the fullest extent permitted by applicable law, Cox Radio shall indemnify and
hold harmless each indemnified person from and against any loss, damage or claim
incurred by such indemnified person by reason of any act or omission performed
or omitted by such indemnified person in good faith on behalf of a Cox Radio
Trust and in a manner such indemnified person reasonably believed to be within
the scope of authority conferred on such indemnified person by the declaration
of trust, except that no indemnified person shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such indemnified person by
reason of gross negligence (or, in the case of the property trustee of a Cox
Radio Trust, negligence) or willful misconduct with respect to such acts or
omissions. Each declaration of trust further provides that to the fullest extent
permitted by applicable law, expenses (including legal fees) incurred by an
indemnified person in defending any claim, demand, action, suit or the final
disposition of such claim, demand, action, suit or proceeding shall, from time
to time, be advanced by Cox Radio prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by Cox Radio of an undertaking
by or on behalf of the indemnified person to repay such amount if it shall be
determined that the indemnified person is not entitled to be indemnified
pursuant to the declaration of trust.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
3.1 -- Amended and Restated Certificate of Incorporation of Cox
Radio, Inc. (incorporated by reference to the corresponding
exhibit of Cox Radio's Registration Statement on Form S-1
(File No. 333-08737)).
3.2 -- Amended and Restated Bylaws of Cox Radio, Inc. (incorporated
by reference to the corresponding exhibit of Cox Radio's
Registration Statement on Form S-1 (File No. 333-08737)).
4.1 -- Indenture dated as of May 26, 1998 (incorporated by
reference to Amendment No. 1 to Cox Radio's Registration
Statement on Form S-4 (File No. 333-61179)).
4.2 -- First Supplemental Indenture dated as of February 1, 1999
(previously filed as an exhibit to Cox Radio's Annual Report
on Form 10-K for the fiscal year ended December 31, 1998
(File No. 1-12187) and incorporated herein by this
reference).
4.3 -- Form of Indenture for Junior Subordinated Debentures of Cox
Radio, Inc.
4.4 -- Certificate of Trust of Cox Radio Trust I.
4.5 -- Declaration of Trust of Cox Radio Trust I.
4.6 -- Certificate of Cox Radio Trust II.
4.7 -- Declaration of Trust of Cox Radio Trust II.
4.8 -- Form of Amended and Restated Trust Agreement.
4.9 -- Form of Preferred Securities Guarantee Agreement.
5.1 -- Opinion of Dow, Lohnes & Albertson, PLLC.
5.2 -- Opinion of Richards, Layton & Finger, P.A.
12 -- Statement setting forth computation of ratio of earnings to
fixed charges.
</TABLE>
II-2
<PAGE> 51
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
23.1 -- Consent of Dow, Lohnes & Albertson, PLLC (contained in their
opinion filed as Exhibit 5.1).
23.2 -- Consent of Richards, Layton & Finger, P.A. (contained in
their opinion filed as Exhibit 5.2).
23.3 -- Consent of Deloitte & Touche LLP to permit incorporation by
reference of report dated February 7, 2000 (March 6, 2000 as
to Note 15 and March 14, 2000 as to Note 16), appearing in
the Annual Report on Form 10-K/A (Amendment No. 1) of Cox
Radio, Inc. for the year ended December 31, 1999.
23.4 -- Consent of Deloitte & Touche LLP to permit incorporation by
reference of report dated March 31, 2000 (relating to the
combined statements of revenues and direct operating
expenses of WAPE-FM Jacksonville, Florida; WFYV-FM
Jacksonville, Florida; WKQL-FM Jacksonville, Florida;
WMXQ-FM Jacksonville, Florida; WOKV-AM Jacksonville,
Florida; WBWL-AM Jacksonville, Florida; WPLR-FM New Haven,
Connecticut; WKHL-FM Stamford-Norwalk, Connecticut; WSTC-AM
Stamford-Norwalk, Connecticut; WEFX-FM Stamford-Norwalk,
Connecticut; and WNLK-AM Stamford-Norwalk, Connecticut
(while under ownership of Capstar Broadcasting Corporation))
appearing in the Current Report on Form 8-K of Cox Radio,
Inc. dated August 30, 1999 and filed April 19, 2000.
23.5 -- Consent of Deloitte & Touche LLP to permit incorporation by
reference of report dated March 31, 2000 (relating to the
combined statements of assets to be acquired of WEDR-FM
Miami, Florida; WFOX-FM Atlanta, Georgia; WAPE-FM
Jacksonville, Florida; WFYV-FM Jacksonville, Florida;
WKQL-FM Jacksonville, Florida; WMXQ-FM Jacksonville,
Florida; WOKV-AM Jacksonville, Florida; WBWL-AM
Jacksonville, Florida; WPLR-FM New Haven, Connecticut;
WKHL-FM Stamford-Norwalk, Connecticut; WSTC-AM
Stamford-Norwalk, Connecticut; WEFX-FM Stamford-Norwalk,
Connecticut; and WNLK-AM Stamford-Norwalk, Connecticut
(radio stations owned by AMFM Inc.) and the related combined
statements of revenues and direct operating expenses (while
under ownership of AMFM Inc.)) appearing in the Current
Report on Form 8-K of Cox Radio, Inc. dated August 30, 1999
and filed April 19, 2000.
23.6 -- Consent of Ernst & Young LLP to permit incorporation by
reference of report dated March 16, 2000 concerning Marlin
Broadcasting, Inc. appearing in the Current Report on Form
8-K of Cox Radio, Inc. dated August 30, 1999 and filed April
19, 2000.
24.1 -- Power of Attorney for Cox Radio, Inc. (included on the
signature page).
24.2 -- Power of Attorney for Cox Radio, as Sponsor, to sign the
Registration Statement on behalf of Cox Radio Trust I
(included in Exhibit 4.5).
24.3 -- Power of Attorney for Cox Radio, as Sponsor, to sign the
Registration Statement on behalf of Cox Radio Trust II
(included in Exhibit 4.7).
25.1 -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York, as trustee under the
indenture.
25.2 -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York, as trustee under the
Junior Subordinated Debenture Indenture.
25.3 -- Form T-1 Statement of Eligibility for The Bank of New York,
as guarantee trustee under the Preferred Securities
Guarantee Agreement for Cox Radio Trust I.
25.4 -- Form T-1 Statement of Eligibility for The Bank of New York,
as guarantee trustee under the Preferred Securities
Guarantee Agreement for Cox Radio Trust II.
25.5 -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York, as property trustee
under the Amended and Restated Trust Agreement for Cox Radio
Trust I.
25.6 -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York, as property trustee
under the Amended and Restated Trust Agreement for Cox Radio
Trust II.
</TABLE>
II-3
<PAGE> 52
ITEM 17. UNDERTAKINGS.
Each undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5) If any of the securities are offered at competitive bidding, (a)
to use its best efforts to distribute prior to the opening of bids, to
prospective bidders, underwriters, and dealers, a reasonable number of
copies of a prospectus which at that time meets the requirements of Section
10(a) of the Act, and relating to the securities offered at competitive
bidding, as contained in the registration statement, together with any
supplements thereto, and (b) to file an amendment to the registration
statement reflecting the results of bidding, the terms of the reoffering
and related matters to the extent required by the applicable form, not
later than the first use, authorized by the issuer after the opening of
bids, of a prospectus relating to the securities offered at competitive
bidding, unless no further public offering of such securities by the issuer
and no reoffering of such securities by the purchasers is proposed to be
made.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
Each undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE> 53
Each undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-5
<PAGE> 54
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Cox Radio, Inc.
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on April 20, 2000.
COX RADIO, INC.
By: /s/ Robert F. Neil
------------------------------------
Robert F. Neil
President and Chief Executive
Officer
POWER OF ATTORNEY
Cox Radio, Inc., a Delaware corporation, and each person whose signature
appears below, constitutes and appoints Nicholas D. Trigony, Robert F. Neil,
Maritza C. Pichon, David E. Easterly and Marc W. Morgan, or any of them, with
full power to act without the other, such person's true and lawful attorneys-
in-fact, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign this
registration statement, any subsequent related registration statement filed
pursuant to Rule 462(b) or 462(d) promulgated under the Securities Act of 1933,
and any and all amendments to such registration statements and other documents
in connection therewith, and to file the same, and all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact, and each of them, full power
and authority to do and perform each and every act and thing necessary or
desirable to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, thereby ratifying and
confirming all that said attorneys-in-fact, or any of them, or their or his or
her substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons on
behalf of Cox Radio, Inc. and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ Nicholas D. Trigony Chairman of the Board of April 20, 2000
- ----------------------------------------------------- Directors
Nicholas D. Trigony
/s/ Robert F. Neil President and Chief Executive April 20, 2000
- ----------------------------------------------------- Officer, Director
Robert F. Neil
/s/ Maritza C. Pichon Chief Financial Officer April 20, 2000
- ----------------------------------------------------- (Principal Financial Officer
Maritza C. Pichon and Principal Accounting
Officer)
/s/ David E. Easterly Director April 20, 2000
- -----------------------------------------------------
David E. Easterly
/s/ Ernest D. Fears, Jr. Director April 1, 2000
- -----------------------------------------------------
Ernest D. Fears, Jr.
</TABLE>
II-6
<PAGE> 55
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ Richard A. Ferguson Director April 1, 2000
- -----------------------------------------------------
Richard A. Ferguson
/s/ Paul M. Hughes Director April 20, 2000
- -----------------------------------------------------
Paul M. Hughes
/s/ James C. Kennedy Director April 20, 2000
- -----------------------------------------------------
James C. Kennedy
/s/ Marc W. Morgan Director April 3, 2000
- -----------------------------------------------------
Marc W. Morgan
</TABLE>
II-7
<PAGE> 56
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Cox Radio Trust
I and Cox Radio Trust II each certify that they have reasonable grounds to
believe that they meet all the requirements for filing on Form S-3 and have duly
caused this Registration Statement to be signed on their behalf by the
undersigned, thereunto duly authorized in the City of Atlanta, State of Georgia,
on April 20, 2000.
COX RADIO TRUST I
By: Cox Radio, Inc.
as Sponsor
By: /s/ Robert F. Neil
------------------------------------
Name: Robert F. Neil
Title: President and Chief
Executive Officer
COX RADIO TRUST II
By: Cox Radio, Inc.
as Sponsor
By: /s/ Robert F. Neil
------------------------------------
Name: Robert F. Neil
Title: President and Chief
Executive Officer
II-8
<PAGE> 1
EXHIBIT 4.3
COX RADIO, INC., AS ISSUER
AND
THE BANK OF NEW YORK, AS TRUSTEE
INDENTURE
DATED AS OF ____________ ____, ________
JUNIOR SUBORDINATED DEBENTURES
<PAGE> 2
<TABLE>
<S> <C>
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE ............................................................1
Section 1.01 Definitions................................................................................... 1
Section 1.02 Other Definitions..............................................................................6
Section 1.03 Incorporation by Reference of TIA..............................................................7
Section 1.04 Rules of Construction..........................................................................7
Section 1.05 Acts of Holders and Holders of Preferred Securities............................................7
ARTICLE 2 THE DEBENTURES.........................................................................................8
Section 2.01 Amount Unlimited; Issuable in Series...........................................................8
Section 2.02 Payment of Principal and Interest.............................................................11
Section 2.03 Execution, Authentication and Delivery........................................................12
Section 2.04 Registrar and Paying and Conversion Agents....................................................15
Section 2.05 Paying Agent to Hold Money in Trust...........................................................16
Section 2.06 Debentureholder Lists.........................................................................16
Section 2.07 Transfer and Exchange.........................................................................16
Section 2.08 Replacement Debentures........................................................................17
Section 2.09 Outstanding Debentures; Determinations of Holders' Action.....................................17
Section 2.10 Temporary Debentures..........................................................................18
Section 2.11 Book-Entry System.............................................................................18
Section 2.12 Cancellation..................................................................................20
Section 2.13 CUSIP Numbers.................................................................................20
ARTICLE 3 REDEMPTION............................................................................................20
Section 3.01 Redemption; Notice to Trustee.................................................................20
Section 3.02 Selection of Debentures to be Redeemed........................................................21
Section 3.03 Notice of Redemption..........................................................................21
Section 3.04 Effect of Notice of Redemption................................................................22
Section 3.05 Deposit of Redemption Price...................................................................22
Section 3.06 Debentures Redeemed in Part...................................................................22
ARTICLE 4 COVENANTS ............................................................................................22
Section 4.01 Payment of Principal, Premium and Interest....................................................22
Section 4.02 Prohibition Against Dividends, etc............................................................23
Section 4.03 SEC Reports...................................................................................24
Section 4.04 Compliance Certificates.......................................................................24
Section 4.05 Further Instruments and Acts..................................................................25
Section 4.06 Payment of Expenses of each Trust.............................................................25
Section 4.07 Ownership of Common Securities................................................................25
Section 4.08 Statement by Officers as to Default...........................................................25
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE 5 SUCCESSOR CORPORATION.................................................................................26
Section 5.01 When the Company May Merge, Etc...............................................................26
ARTICLE 6 DEFAULTS AND REMEDIES ................................................................................26
Section 6.01 Events of Default.............................................................................26
Section 6.02 Acceleration..................................................................................28
Section 6.03 Other Remedies................................................................................29
Section 6.04 Waiver of Past Defaults.......................................................................29
Section 6.05 Control by Holders............................................................................29
Section 6.06 Limitation on Suits...........................................................................30
Section 6.07 Unconditional Right of Holders to Receive Principal, Premium and Interest.....................30
Section 6.08 Direct Action Right of Holders of Trust Preferred Securities..................................31
Section 6.09 Collection Suits by the Trustee...............................................................31
Section 6.10 Trustee May File Proofs of Claim..............................................................32
Section 6.11 Priorities....................................................................................32
Section 6.12 Undertaking for Costs.........................................................................33
ARTICLE 7 THE TRUSTEE...........................................................................................33
Section 7.01 Duties and Responsibilities of the Trustee....................................................33
Section 7.02 Rights of the Trustee.........................................................................34
Section 7.03 Not Responsible for Recitals or Issuances of Debentures.......................................35
Section 7.04 May Hold Securities...........................................................................35
Section 7.05 Notice of Defaults............................................................................36
Section 7.06 Reports by Trustee to Holders.................................................................36
Section 7.07 Compensation and Indemnity....................................................................36
Section 7.08 Eligibility; Disqualification.................................................................37
Section 7.09 Resignation and Removal; Appointment of Successor.............................................37
Section 7.10 Acceptance of Appointment by Successor........................................................39
Section 7.11 Successor Trustee by Merger...................................................................40
ARTICLE 8 SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS ............................................40
Section 8.01 Satisfaction and Discharge of Indenture.......................................................40
Section 8.02 Application by Trustee of Funds Deposited for Payment of Debentures...........................41
Section 8.03 Repayment of Moneys Held by Paying Agent......................................................42
Section 8.04 Return of Moneys Held by the Trustee and Paying Agent Unclaimed for Two Years.................42
ARTICLE 9 SUPPLEMENTAL INDENTURES...............................................................................42
Section 9.01 Supplemental Indentures Without Consent of Holders............................................42
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
Section 9.02 Supplemental Indentures With Consent of Holders...............................................43
Section 9.03 Compliance with Trust Indenture Act...........................................................45
Section 9.04 Revocation and Effect of Consents, Waivers and Actions........................................45
Section 9.05 Notation on or Exchange of Debentures.........................................................45
Section 9.06 Execution of Supplemental Indentures..........................................................45
Section 9.07 Effect of Supplemental Indentures.............................................................46
ARTICLE 10 SUBORDINATION........................................................................................46
Section 10.01 Debentures Subordinated to Senior Indebtedness................................................46
Section 10.02 Priority and Payment of Proceeds in Certain Events: Remedies Standstill.......................46
Section 10.03 Payments which May Be Made Prior to Notice....................................................47
Section 10.04 Rights of Holders of Senior Indebtedness Not to Be Impaired...................................47
Section 10.05 Trustee May Take Action to Effectuate Subordination...........................................48
Section 10.06 Subrogation...................................................................................48
Section 10.07 Obligations of Company Unconditional; Reinstatement...........................................48
Section 10.08 Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice.......................49
Section 10.09 Right of Trustee to Hold Senior Indebtedness..................................................49
Section 10.10 Notice to Trustee.............................................................................50
Section 10.11 Reliance on Judicial Order or Certificate of Liquidating Agent................................50
Section 10.12 Trustee Not Fiduciary for Holders of Senior Indebtedness......................................51
ARTICLE 11 SINKING FUNDS........................................................................................51
Section 11.01 Applicability of Article......................................................................51
Section 11.02 Satisfaction of Sinking Fund Payments with Debentures.........................................51
Section 11.03 Redemption of Debentures for Sinking Fund.....................................................52
ARTICLE 12 MEETINGS OF DEBENTUREHOLDERS.........................................................................52
Section 12.01 Purposes for Which Meetings May Be Called.....................................................52
Section 12.02 Call, Notice and Place of Meetings............................................................53
Section 12.03 Persons Entitled to Vote at Meetings..........................................................53
Section 12.04 Quorum; Action................................................................................53
Section 12.05 Determination of Voting Rights; Conduct and Adjournment of Meetings...........................54
Section 12.06 Counting Votes and Recording Action of Meetings.............................................. 55
ARTICLE 13 MISCELLANEOUS........................................................................................55
Section 13.01 Trust Indenture Act Controls................................................................. 55
Section 13.02 Notices. .....................................................................................55
Section 13.03 Communication by Holders with Other Holders...................................................57
Section 13.04 Certificate and Opinion as to Conditions Precedent........................................... 57
Section 13.05 Statements Required in Certificate or Opinion................................................ 57
Section 13.06 Severability Clause.......................................................................... 57
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
Section 13.07 Rules by Trustee, Paying Agent and Registrar................................................. 58
Section 13.08 Legal Holidays................................................................................58
Section 13.09 Governing Law.................................................................................58
Section 13.10 No Recourse Against Others. ..................................................................58
Section 13.11 Successors and Assigns........................................................................58
Section 13.12 Counterparts..................................................................................58
Section 13.13 No Adverse Interpretation of Other Agreements.................................................58
Section 13.14 Table of Contents, Headings, Etc..............................................................58
Section 13.15 Holders of Preferred Securities as Third Party Beneficiaries..................................59
Section 13.16 Benefits of the Indenture.....................................................................59
</TABLE>
iv
<PAGE> 6
Cox Radio, Inc. Indenture
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
--------------
<S> <C>
ss.310(a)(1)................................................................. 2.03; 7.08
(a)(2)........................................................ 2.03; 7.08
(a)(3)........................................................ Not Applicable
(a)(4)........................................................ Not Applicable
(a)(5)........................................................ Not Applicable
(b)........................................................... 7.08; 7.09
(c)........................................................... Not Applicable
ss.311(a).................................................................... Not Applicable
(b)........................................................... Not Applicable
(c)........................................................... Not Applicable
ss.312(a).................................................................... 2.06
(b)........................................................... 13.03
(c)........................................................... 13.03
ss.313(a).................................................................... 7.06
(b)(1)........................................................ Not Applicable
(b)(2)........................................................ Not Applicable
(c)........................................................... 7.06
(d)........................................................... 7.06
ss.314(a).................................................................... 4.03; 4.04
(b)........................................................... Not Applicable
(c)(1)........................................................ 2.03; 13.04; 13.05
(c)(2)........................................................ 2.03; 13.04; 13.05
(c)(3)........................................................ Not Applicable
(d)........................................................... Not Applicable
(e)........................................................... 13.05
........................................................... Not Applicable
ss.315(a).................................................................... 7.01(b); 7.02
(b)........................................................... 7.02; 7.04; 13.02
(c)........................................................... 7.01(a); 7.02
(d)........................................................... 7.01(c); 7.02
(e)........................................................... 6.12
ss.316(a)(1)(A).............................................................. 6.05
(a)(1)(B)..................................................... 6.02; 6.04
(a)(2)........................................................ Not Applicable
(a)(last
sentence)................................................... 2.09
(b)........................................................... 6.07
(c)........................................................... 1.05
ss.317(a)(1)................................................................. 6.09
(a)(2)........................................................ 6.10
(b)........................................................... 2.05
ss.318(a).................................................................... 13.01
(b)........................................................... Not Applicable
(c)........................................................... 13.01
</TABLE>
- --------------------
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Indenture.
v
<PAGE> 7
INDENTURE, dated as of _____________, ____, by and between Cox Radio,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware, or any permitted successor thereto (the "Company"), and The Bank of
New York, a New York banking corporation, as trustee (the "Trustee").
WHEREAS, the Company may from time to time create or establish one or
more statutory business trusts for the purpose of issuing undivided beneficial
interests in the assets thereof (the "Trust Securities") and using the proceeds
thereof to acquire the Company's Debentures (as hereinafter defined).
WHEREAS, all things necessary to make the Debentures, when duly issued
and executed by the Company and authenticated and delivered hereunder, the valid
obligations of the Company, and to make this Indenture a valid and binding
agreement of the Company, enforceable in accordance with its terms, have been
done.
NOW THEREFORE:
Each of the Company and the Trustee, intending to be legally bound
hereby, agrees as follows for the benefit of the other party and for the equal
and ratable benefit of the Holders (as hereinafter defined) of the securities
issued hereunder:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS.
"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. When used with respect to any Person,
"control" means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Board of Directors" means either the Board of Directors of the Company
or the Executive Committee of such Board or any other committee of such Board
duly authorized to act generally or in any particular respect for the Company
hereunder.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or the Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee, (ii) a copy of a unanimous written
consent of the Board of Directors or (iii) a certificate signed by the
authorized officer or officers to whom the Board of Directors has delegated its
authority, and in each case, delivered to the Trustee.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which banking institutions and trust companies in The City of New York are
authorized or required by law, regulation or executive order to close.
<PAGE> 8
"Capital Lease Obligations" of a Person means any obligation which is
required to be classified and accounted for as a capital lease on the face of a
balance sheet of such Person prepared in accordance with GAAP.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or interests
in (however designated) corporate stock or similar interests in other types of
entities.
"Common Stock" means the Class A common stock, par value $1.00 per
share, of the Company and the Class B common stock, par value $1.00 per share,
of the Company collectively, unless the context otherwise requires.
"Company Order" means a written request or order signed in the name of
the Company by an Officer of the Company and delivered to the Trustee.
"Debentureholder" or "Holder" means a Person in whose name a Debenture
is registered on the Registrar's books.
"Debentures" shall mean any of the junior subordinated debentures of
any series issued, authenticated and delivered under this Indenture.
"Default" means any event which is, or after notice or passage of time,
or both, would be, an Event of Default pursuant to Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extension Period," with respect to any series of Debentures, means any
period during which the Company elects to extend the interest payment period on
such series of Debentures pursuant to Section 4.01(b); provided that an
Extension Period (or any extension thereof) must end on an Interest Payment Date
for such Debentures and may not extend beyond the Stated Maturity Date or the
Redemption Date of any Debenture of such series.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board.
"Guarantee" means each guarantee agreement executed by the Company with
respect to the Preferred Securities issued by any Trust pursuant to which the
Company irrevocably and unconditionally agrees to pay the guarantee payments
under any such guarantee agreement to the holders of such Preferred Securities.
"Indebtedness" means, without duplication, (i) every obligation of the
Company for money borrowed; (ii) every obligation of the Company evidenced by
bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses;
(iii) every reimbursement obligation of the Company with respect to letters of
credit, banker's acceptances or similar facilities issued for the account of the
Company; (iv) every obligation of the Company issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising
2
<PAGE> 9
in the ordinary course of business); (v) every Capital Lease Obligation of the
Company; (vi) all indebtedness of the Company, whether incurred on or prior to
the date of this Indenture or thereafter incurred, for claims in respect of
derivative products, including interest rate, foreign exchange rate and
commodity forward contracts, options and swaps and similar arrangements; (vii)
letters of credit, performance bonds and similar obligations issued in favor of
governmental authorities as a term of a governmental franchise, license, permit
or authorization held by the Company or any of its affiliates; (viii) every
obligation of the type referred to in clauses (i) through (vii) of another
Person and all dividends of another Person the payment of which, in either case,
the Company has guaranteed or is responsible or liable for, directly or
indirectly, as obligor or otherwise; and (ix) obligations of the type referred
to in clauses (i) through (viii) of another Person secured by any lien on any
property or asset of the Company (whether or not such obligation is assumed by
the Company); and all deferrals, renewals, extensions and refundings of, and
amendments, modifications and supplements to, any of the foregoing obligations.
"Indebtedness Ranking on a Parity with the Debentures" means (i)
Indebtedness, whether outstanding on the date of execution of this Indenture or
thereafter created, assumed or incurred, to the extent such Indebtedness
specifically by its terms ranks pari passu with and not prior to the Debentures
in the right of payment upon the happening of the dissolution, winding-up,
liquidation or reorganization of the Company and (ii) all other debt securities,
and guarantees in respect of those debt securities, issued to any other trust,
or a trustee of such trust, partnership or other entity affiliated with the
Company that is a financing vehicle of the Company (a "financing entity") in
connection with the issuance by such financing entity of equity securities or
other securities guaranteed by the Company pursuant to an instrument that ranks
pari passu with or junior in right of payment to the Guarantees. The securing of
any Indebtedness otherwise constituting Indebtedness Ranking on a Parity with
the Debentures shall not be deemed to prevent such Indebtedness from
constituting Indebtedness Ranking on a Parity with the Debentures.
"Indebtedness Ranking Junior to the Debentures" means any Indebtedness,
whether outstanding on the date of execution of this Indenture or thereafter
created, assumed or incurred, to the extent such Indebtedness by its terms ranks
junior to and not pari passu with or prior to the Debentures (and any other
Indebtedness Ranking on a Parity with the Debentures) in right of payment upon
the happening of the dissolution, winding-up, liquidation or reorganization of
the Company. The securing of any Indebtedness otherwise constituting
Indebtedness Ranking Junior to the Debentures shall not be deemed to prevent
such Indebtedness from constituting Indebtedness Ranking Junior to the
Debentures.
"Indenture" means this indenture, as amended or supplemented from time
to time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"Interest Payment Date," when used with respect to the Debentures of
any series, means the stated maturity of any installment of interest on the
Debentures of that series.
"Issue Date," with respect to a series of Debentures, means the date on
which the Debentures of such series are originally issued.
3
<PAGE> 10
"Office" or "Agency," with respect to any Debentures, means an office
or agency of the Company maintained or designated in a Place of Payment for such
Debentures pursuant to Section 2.04 or any other office or agency of the Company
maintained or designated for such Debentures pursuant to Section 2.04 or, to the
extent designated or required by Section 2.04 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officer" means, with respect to any corporation, any Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
such corporation.
"Officer's Certificate" means a certificate signed by the Chief
Executive Officer, the Chief Financial Officer, the President, a Vice President,
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, that complies with the requirements of Sections 13.04 and 13.05
and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of the Company, or any other counsel who shall be reasonably acceptable
to the Trustee and provided that the General Counsel and the Assistant General
Counsel of the Company shall be deemed to be reasonably acceptable to the
Trustee, containing the applicable information specified in Sections 13.04 and
13.05.
"Paying Agent" means any Person authorized by the Company to pay the
principal of and premium, if any, and interest on the Debentures of any series
on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Predecessor Debentures" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and for purposes of this definition, any
Debenture authenticated and delivered under Section 2.08 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Debenture shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Debenture.
"Preferred Securities" means the preferred securities of a Trust,
representing undivided beneficial interests in the assets of such Trust.
"Record Date," with respect to any series of the Debentures, means the
Regular Record Date, the Special Record Date or any date set to determine the
Holders of Debentures of such series entitled to vote, consent, make a request
or exercise any other right associated with such Debentures.
"Redemption Date," with respect to the Debentures of any series to be
redeemed, means the date specified for the redemption thereof in accordance with
the terms thereof and pursuant to Article 3 of this Indenture.
4
<PAGE> 11
"Redemption Price," with respect to the Debentures of any series to be
redeemed, means the price at which such Debenture is to be redeemed in
accordance with the terms thereof and pursuant to Article 3 of this Indenture.
"Regular Record Date," with respect to an Interest Payment Date for the
Debentures of a series, means the date specified for such Debentures for the
determination of Holders entitled to receive the payment of interest on such
Interest Payment Date.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, amended.
"Security Exchange," when used with respect to the Debentures of any
series which are held as assets of a Trust pursuant to the Trust Agreement of
such Trust, means the distribution of the Debentures of such series by such
Trust to the holders of the Trust Securities of such Trust in exchange for such
Trust Securities upon certain events described in the applicable Trust Agreement
of such Trust.
"Senior Indebtedness" means all Indebtedness, whether outstanding on
the date of execution of this Indenture or thereafter created, assumed or
incurred, except Indebtedness Ranking on a Parity with the Debentures or
Indebtedness Ranking Junior to the Debentures.
A "series" of Debentures means all Debentures denoted as part of the
same series authorized by or pursuant to a particular Board Resolution or a
supplemental indenture.
"Special Record Date" for the payment of any Defaulted Interest on the
Debentures of any series means the date determined pursuant to Section 2.02.
"Stated Maturity Date," with respect to the Debentures of any series,
means the date specified for such Debentures as the date on which the principal
of such Debenture is due and payable.
"Subsidiary" means any corporation, association, partnership, trust,
limited liability company 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, trustees or the
governing individuals or body thereof is at the time owned or controlled,
directly or indirectly, by (i) the Company, (ii) the Company and one or more
Subsidiaries, or (iii) one or more Subsidiaries.
5
<PAGE> 12
"TIA" means the Trust Indenture Act of 1939, as amended and as in
effect on the date of this Indenture; provided, however, that if such Act is
amended after such date, TIA means, to the extent required by any such
amendment, such Act as so amended.
"Trust" means any statutory business trust created or established by
the Company to issue Trust Securities and to use the proceeds from the sale
thereof to purchase Debentures.
"Trust Agreement" means the Amended and Restated Trust Agreement for a
Trust, among the Company, as sponsor, The Bank of New York, as Property Trustee,
the Delaware Trustee named therein and the Administrative Trustees named
therein, as the same may be amended and modified from time to time.
"Trust Securities" means the undivided beneficial interests in the
assets of a Trust.
"Trustee" means the Person named as "Trustee" in the first paragraph of
this Indenture, until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor, and if
at any time there is more than one such Person, "Trustee" as used with respect
to Debentures of any series shall mean the Trustee with respect to Debentures of
that series.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
"Wholly Owned Subsidiary" means a Subsidiary all the Capital Stock of
which (other than directors' qualifying shares) is owned by the Company or
another Wholly Owned Subsidiary.
SECTION 1.02 OTHER DEFINITIONS.
<TABLE>
<CAPTION>
Term Defined in Section
------------------
<S> <C>
"Act"....................................................... 1.05
"Bankruptcy Law"............................................ 6.01
"Conversion Agent".......................................... 2.04
"Custodian"................................................. 6.01
"Defaulted Interest"........................................ 2.02
"Depository"................................................ 2.11
"Direct Action"............................................. 6.08
"Event of Default".......................................... 6.01
"Global Debenture".......................................... 2.11
"Legal Holiday"............................................. 13.08
"Notice of Default"......................................... 6.01
"Property Trustee".......................................... 3.01
"Register".................................................. 2.04
"Registrar"................................................. 2.04
"Successor"................................................. 5.01
</TABLE>
6
<PAGE> 13
SECTION 1.03 INCORPORATION BY REFERENCE OF TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Debentures.
"indenture security holder" means a Debentureholder or Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the Debentures.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) each capitalized term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including, without limitation;
(e) words in the singular include the plural, and words in the
plural include the singular; and
(f) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision.
SECTION 1.05 ACTS OF HOLDERS AND HOLDERS OF PREFERRED SECURITIES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders or by holders of Preferred Securities may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders or holders of Preferred Securities, as applicable, in person or by
an agent duly appointed in writing and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and,
7
<PAGE> 14
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of Holders or holders of Preferred Securities
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
Without limiting the generality of this Section, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depository that
is a Holder of a Global Debenture, may make, give or take, by a proxy, or
proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or taken by Holders, and a Depository that is a
Holder of a Global Debenture may provide its proxy or proxies to the beneficial
owners of interests in any such Global Debenture through such Depository's
standing instructions and customary practices.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Debentures shall be proved by the Register.
(d) Any Act of the Holder of any Debenture shall bind every future
Holder of the same Debenture and the Holder of every Debenture issued upon the
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Debenture.
(e) If the Company solicits from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, by or pursuant to a resolution of its Board of Directors,
fix in advance a Record Date for the determination of Holders entitled to give
such Act, but the Company shall have no obligation to do so. If such a Record
Date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other action may be given before or after such Record Date, but only
Holders of record at the close of business on such Record Date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of outstanding Debentures have authorized or agreed or consented to
such Act, and for that purpose the outstanding Debentures shall be computed as
of such Record Date.
ARTICLE 2
THE DEBENTURES
SECTION 2.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Debentures which may be authenticated
and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series in an amount not to
exceed the aggregate principal amount of Debentures of that series from time to
time authorized by or
8
<PAGE> 15
pursuant to a Board Resolution, or pursuant to one or more indentures
supplemental hereto, prior to the initial issuance of Debentures of a particular
series.
With respect to any Debentures of each series to be authenticated and
delivered hereunder, there shall be established in or pursuant to a Board
Resolution, and set forth in an Officer's Certificate, or established in one or
more indentures supplemental hereto:
(a) the title of the Debentures of the series (which shall
distinguish the Debentures of the series from all other Debentures);
(b) any limit upon the aggregate principal amount of the
Debentures of that series which may be authenticated and delivered under this
Indenture (except for Debentures authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Debentures of that
series);
(c) Stated Maturity Date or Dates, which may be serial and the
Company's option, if any, to change the Stated Maturity Date or Dates;
(d) the rate or rates (which may be fixed or variable) at which
the Debentures of the series shall bear interest or the manner of calculation of
such rate or rates, if any;
(e) the basis upon which interest shall be computed if other than
a 360-day year composed of twelve 30-day months;
(f) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner of
determination and frequency of such Interest Payment Dates and the Regular
Record Dates therefor;
(g) the right, if any, to extend the interest payment periods and
the duration of any such Extension Period, including the maximum consecutive
period during which interest payment periods may be extended;
(h) Issue Date or Dates;
(i) authorized denominations;
(j) the place or places for the payment of principal and premium,
if any, and interest;
(k) the date or dates on which or the period or periods within
which, the price or prices at which, and the terms and conditions upon which,
Debentures of the series may be redeemed, in whole or in part, at the option of
the Company;
(l) the obligation, if any, of the Company to redeem or purchase
Debentures of the series pursuant to any sinking fund or analogous provisions
(including payments made in cash in anticipation of future sinking fund
obligations) or at the option of a Holder and the date or dates on which or the
period or periods within which, the price or prices at which, and the terms and
conditions upon which, Debentures of the series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
9
<PAGE> 16
(m) the form of the Debentures of the series, including the form
of the Certificate of Authentication for such series;
(n) the right or obligation of any Holder or the Company or the
applicable Trust to convert or exchange any Debenture into other securities of
the Company or such Trust and the terms and conditions of any such conversion or
exchange and, if so provided, the terms and conditions upon which such
conversion or exchange will be effected, including, the conversion or exchange
price, the conversion or exchange date(s) or period(s), provisions as to whether
conversion or exchange will be at the option of the Holder or the Company or
such Trust, the events requiring adjustment of the conversion or exchange price
and provisions affecting conversion or exchange in the event of redemption of
the Debenture of any series and any deletions from or modifications or additions
to this Indenture to permit or to facilitate the issuance of such convertible or
exchangeable Debentures or the administration thereof;
(o) whether the Debentures are issuable as a Global Debenture and,
in such case, the identity of the Depository for such series;
(p) any and all other terms with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture); and
(q) the name of the applicable Trust (which shall distinguish such
statutory business trust from all other Trusts) to which the Debentures of such
series are to be deposited as assets and the date of its Trust Agreement.
The Debentures of any series and the Trustee's Certificate of
Authentication to be borne by such Debentures shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental hereto or
as provided in a Board Resolution and as set forth in an Officer's Certificate,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which Debentures of that series may be listed, or to
conform to usage.
All Debentures of any one series shall be substantially identical
except as may otherwise be provided by the Company in or pursuant to the Board
Resolution and set forth in the Officer's Certificate or in any indenture or
indentures supplemental hereto pertaining to such series of Debentures. The
terms of the Debentures of any series may provide, without limitation, that the
Debentures shall be authenticated and delivered by the Trustee on original issue
from time to time upon telephonic or written order of persons designated in the
Officer's Certificate or supplemental indenture (telephonic instructions to be
promptly confirmed in writing by such person) and that such persons are
authorized to determine, consistent with such Officer's Certificate or any
applicable supplemental indenture, such terms and conditions of the Debentures
of such series as are specified in such Officer's Certificate or supplemental
indenture. All Debentures of any one series need not be issued at the same time
and, unless otherwise so provided by the Company, a series may be reopened for
issuances of additional Debentures of such series or to establish additional
terms of such series of Debentures.
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If any of the terms of the Debentures 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
Officer's Certificate setting forth the terms of such series.
SECTION 2.02 PAYMENT OF PRINCIPAL AND INTEREST.
Unless otherwise specified pursuant to Section 2.01(e), interest on the
Debentures shall be computed on the basis of a 360-day year composed of twelve
30-day months.
Unless otherwise provided with respect to a series of Debentures,
(a) the principal and Redemption Price of and interest on each
Debenture shall be payable in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts;
(b) the principal and Redemption Price of any Debenture and
interest payable on the Stated Maturity Date (if other than an Interest Payment
Date) or Redemption Date shall be payable upon surrender of such Debenture at
the Office or Agency of any Paying Agent therefor; and
(c) interest on any Debenture shall be paid on each Interest
Payment Date therefor to the Holder thereof at the close of business on the
Record Date therefor, such interest to be payable by check mailed to the address
of the Person entitled thereto as such address appears on the Register; provided
however, that (i) at the written request of any Holder of at least $100,000,000
aggregate principal amount of Debentures received by the Registrar not later
than the Regular Record Date for such Interest Payment Date, interest accrued on
such Debentures will be payable by wire transfer within the continental United
States in immediately available funds to the bank account number of such Holder
specified in such request and entered on the Register by the Registrar and (ii)
payments made in respect of Global Debentures shall be made in immediately
available funds to the Depository.
Except as specified pursuant to Section 2.01 or Section 4.01(b),
interest on any Debenture which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Debenture (or one or more Predecessor Debentures) is registered at the
close of business on the Regular Record Date for such interest. Any interest on
any Debenture which is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (i) and (ii)
below:
(i) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Debentures (or
their respective Predecessor Debentures) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall, not less than 15 Business Days prior to the date of the proposed
payment, notify the Trustee and the Paying Agent in writing of the
amount of Defaulted Interest proposed to be paid on each Debenture and
the date of the proposed payment, and at the same time
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the Company shall deposit with the Paying Agent 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
Paying Agent for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as provided in this
clause. The Special Record Date for the payment of such Defaulted
Interest shall be the close of business not more than 15 nor less than
10 days prior to the date of the proposed payment. The Trustee shall,
in the name and at the expense of the Company, cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to the Holders thereof, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been given, such Defaulted Interest shall be paid to the Persons in
whose names the Debentures (or their respective Predecessor Debentures)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted
Interest on the Debentures in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Debentures may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee and
the Paying Agent of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Paying Agent.
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debenture shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debenture.
If any convertible Debenture of any series is converted after any
Regular Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Debenture with respect to which the Stated Maturity Date is
prior to such Interest Payment Date), interest that is due on such Interest
Payment Date shall be payable on such Interest Payment Date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Debenture 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 Debenture
that is converted, interest shall not be payable if the Regular Record Date is
after the date of conversion of such Debenture.
SECTION 2.03 EXECUTION, AUTHENTICATION AND DELIVERY.
(a) The Debentures shall be executed on behalf of the Company by
its Chief Executive Officer, its Chief Financial Officer, its President or one
of its Vice Presidents, its Treasurer or one of its Assistant Treasurers under
its corporate seal imprinted or reproduced thereon and attested by its Secretary
or one of its Assistant Secretaries. The signature of any such Officer on the
Debentures may be manual or facsimile.
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(b) Debentures 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 Debentures or
did not hold such offices at the date of such Debentures.
(c) No Debenture shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Debenture a Certificate of Authentication duly executed by the Trustee by manual
signature of a Responsible Officer, and such Certificate of Authentication upon
any Debenture shall be conclusive evidence, and the only evidence, that such
Debenture has been duly authenticated and made available for delivery hereunder.
(d) The Trustee shall authenticate and deliver Debentures of a
series, for original issue, at one time or from time to time in accordance with
the Company Order referred to below, upon receipt by the Trustee of:
(i) a Board Resolution as required by Section 2.01;
(ii) a Company Order requesting the authentication and
delivery of such Debentures and stating the identity of the applicable
Trust and the aggregate liquidation amount of the Trust Securities to
be issued by such Trust concurrently with such Debentures;
(iii) an Officer's Certificate or, unless previously
delivered, a supplemental indenture hereto setting forth the form of
such Debentures and, except as set forth in a Board Resolution,
establishing the terms thereof;
(iv) such Debentures, executed on behalf of the Company in
accordance with clause (a) of this Section;
(v) an Opinion of Counsel to the effect that:
(1) the form or forms of such Debentures have
been duly authorized by the Company and have been established
in conformity with the provisions of this Indenture;
(2) such Debentures, when authenticated and
delivered by the Trustee and issued and delivered by the
Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will have been duly issued under
this Indenture and will constitute valid and legally binding
obligations of the Company, entitled to the benefits provided
by this Indenture, and enforceable in accordance with their
terms, subject, as to enforcement to laws relating to or
affecting generally the enforcement of creditors' rights,
including, without limitation, bankruptcy and insolvency laws
and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or
at law);
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(3) that any supplemental indenture referred to
in clause (iii) above has been duly authorized, executed and
delivered by the Company and is a valid instrument legally
binding upon the Company, enforceable in accordance with its
terms, subject as to enforcement to laws relating to or
affecting creditors' rights, including without limitation,
bankruptcy and insolvency laws and to general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(4) that all consents, approvals and orders of
any commission, governmental authority or agency required in
connection with the issuance and delivery of such Debentures
have been obtained; and
(vi) an Officer's Certificate certifying that no Default
or Event of Default has occurred and is continuing.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith shall determine that such action would expose the Trustee to personal
liability to existing Holders.
(e) The Trustee shall act as the initial authenticating agent.
Thereafter, the Trustee may appoint an authenticating agent. Each authenticating
agent shall 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 TIA to act as trustee under an indenture qualified under the TIA, 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 TIA) 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. An authenticating agent may authenticate
Debentures whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by an authenticating
agent. The Trustee shall pay any authenticating agent appointed by the Trustee
reasonable compensation for its services and the Trustee shall be reimbursed for
such payment by the Company pursuant to Section 7.07. The provisions set forth
in Sections 7.02, 7.03 and 7.07 shall be applicable to any authenticating agent.
(f) If all the Debentures of any series are not to be issued at
one time, it shall not be necessary to deliver an Opinion of Counsel and an
Officer's Certificate at the time of issuance of each Debenture, but such
opinion and certificate, with appropriate modifications, shall be delivered at
or before the time of issuance of the first Debenture of such series. After any
such first delivery, any separate request by the Company that the Trustee
authenticate Debentures 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 Debentures continue to
have been complied with.
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SECTION 2.04 REGISTRAR AND PAYING AND CONVERSION AGENTS.
The Company shall maintain or cause to be maintained, in The City of
New York, an Office or Agency where the Debentures may be presented for
registration of transfer or for exchange ("Registrar"), a Paying Agent at whose
Office the Debentures may be presented or surrendered for payment, a Conversion
Agent at whose Office the Debentures may be presented and surrendered in the
event of a conversion or exchange ("Conversion Agent"), and an Office or Agency
where notices and demands to or upon the Company in respect of the Debentures
and this Indenture may be served. The Registrar shall keep a register (the
"Register") of the Debentures and of their transfer and exchange. The Company
may have one or more co-Registrars and one or more additional Paying Agents and
Conversion Agents. The term Registrar includes any additional registrar, the
term Paying Agent includes any additional paying agent and the term Conversion
Agent includes any additional conversion agent.
Unless otherwise specified in or pursuant to this Indenture or the
Debentures, the Trustee shall be the initial Registrar for each series of
Debentures. The Company shall have the right to remove and replace with or
without cause from time to time the Registrar for any series of Debentures;
provided that no such removal or replacement shall be effective until a
successor Registrar with respect to such series of Debentures shall have been
appointed by the Company and shall have accepted such appointment by the
Company. In the event that the Trustee shall not be or shall cease to be
Registrar with respect to a series of Debentures, it shall have the right to
examine the Register for such series at all reasonable times. There shall be
only one Register for each series of Debentures.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-Registrar (if not the Company or
the Trustee or an Affiliate of the Trustee). The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall give
prompt written notice to the Trustee and to the Holders of any change of
location of such Office or Agency. If at any time the Company shall fail to
maintain or cause to be maintained 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 address of the
Trustee set forth in Section 13.02 hereof. The Company shall notify the Trustee
of the name and address of any such agent. If the Company fails to maintain a
Registrar, Paying Agent, Conversion Agent or agent for service of notices or
demands, the Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.07. The Company or any Affiliate of
the Company may act as Paying Agent, Registrar, Conversion Agent or co-Registrar
or agent for service of notices and demands.
The Company may also from time to time designate one or more other
Offices or Agencies where the Debentures may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee and to the Holders of any
such designation or rescission and of any change in location of any such other
Office or Agency.
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SECTION 2.05 PAYING AGENT TO HOLD MONEY IN TRUST.
Except as otherwise provided herein, prior to or on each due date of
the principal of and premium, if any, and interest on any Debenture, the Company
shall deposit with the Paying Agent a sum of money sufficient to pay such
principal, premium, if any, and interest so becoming due. The Company shall
require each Paying Agent (other than the Trustee or the Company) to agree in
writing that such Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal of
and premium, if any, and interest on the Debentures and shall notify the Trustee
of any default by the Company in making any such payment. At any time during the
continuance of any such default, the Paying Agent shall, upon the request of the
Trustee, pay to the Trustee all money so held in trust and account for any money
disbursed by it. The Company at any time may require the Paying Agent to pay all
money held by it to the Trustee and to account for any money disbursed by it.
Upon doing so, the Paying Agent shall have no further liability for the money so
paid over to the Trustee. If the Company, a Subsidiary or an Affiliate of either
of them acts as Paying Agent, it shall segregate the money held by it as Paying
Agent and hold it as a separate trust fund.
SECTION 2.06 DEBENTUREHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable, the most recent list available to it of the names and addresses of
Debentureholders. If the Trustee is not the Registrar, the Company shall cause
to be furnished to the Trustee seven Business Days prior to each Interest
Payment Date and at such other times as the Trustee may request in writing,
within five Business Days of such request, a list, in such form as the Trustee
may reasonably require of the names and addresses of Debentureholders.
SECTION 2.07 TRANSFER AND EXCHANGE.
When Debentures are presented to the Registrar or a co-Registrar with a
request to register the transfer or to exchange them for an equal principal
amount of Debentures of the same series of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if its
reasonable requirements for such transactions are met. To permit registrations
of transfer and exchanges, the Company shall execute and the Trustee shall
authenticate Debentures, all at the Registrar's request.
Every Debenture presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by the Holder or his attorney duly
authorized in writing.
The Company shall not require payment of a service charge for any
registration of transfer or exchange of Debentures, but the Company may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the registration of the transfer
or exchange of Debentures from the Debentureholder requesting such transfer or
exchange (other than any exchange of a temporary Debenture for a definitive
Debenture not involving any change in ownership).
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The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of (a) any Debenture for a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
Debentures and ending at the close of business on the day of such mailing or (b)
any Debenture selected, called or being called for redemption, except, in the
case of any Debenture to be redeemed in part, the portion thereof not to be
redeemed.
SECTION 2.08 REPLACEMENT DEBENTURES.
If (a) any mutilated Debenture is surrendered to the Company or the
Trustee, or (b) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debenture, and there is
delivered to the Company and the Trustee such Debenture or indemnity as may
reasonably be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Debenture has been
acquired by a bona fide purchaser, the Company shall execute in exchange for any
such mutilated Debenture, or in lieu of any such destroyed, lost or stolen
Debenture, a new Debenture of the same series and of like tenor and principal
amount, bearing a number not contemporaneously outstanding, and the Trustee
shall authenticate and make such new Debenture available for delivery.
In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, or is about to be redeemed by the
Company pursuant to Article 3, the Company in its discretion may, instead of
issuing a new Debenture, pay or purchase such Debenture, as the case may be.
Upon the issuance of any new Debentures under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the reasonable fees and expenses of the Trustee) in
connection therewith.
Every new Debenture issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Debenture shall constitute an original
additional contractual obligation of the Company (whether or not the mutilated,
destroyed, lost or stolen Debenture shall be at any time enforceable) and shall
be entitled to all benefits of this Indenture equally and ratably with any and
all other Debentures duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 2.09 OUTSTANDING DEBENTURES; DETERMINATIONS OF HOLDERS' ACTION.
Debentures outstanding at any time are all the Debentures authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, those mutilated, destroyed, lost or stolen Debentures referred to
in Section 2.08, those redeemed by the Company pursuant to Article 3, and those
described in this Section as not outstanding. A Debenture does not cease to be
outstanding because the Company or a Subsidiary or Affiliate thereof holds the
Debenture; provided, however, that in determining whether the Holders of the
requisite principal amount of Debentures have given or concurred in any request,
demand, authorization, direction, notice,
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consent or waiver hereunder, Debentures owned by the Company or a Subsidiary or
Affiliate (other than any Trust so long as any of the Preferred Securities of
such Trust are outstanding) shall be disregarded and deemed not to be
outstanding.
Subject to the foregoing, only Debentures outstanding at the time of
such determination shall be considered in any such determination (including
determinations pursuant to Articles 3, 6 and 9).
If a Debenture is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives proof reasonably satisfactory to it that
the replaced Debenture is held by a bona fide purchaser.
If the Paying Agent (other than the Company) holds, in accordance with
this Indenture, at the Stated Maturity Date or on a Redemption Date, money
sufficient to pay the Debentures payable on that date, then immediately on the
Stated Maturity Date or such Redemption Date, as the case may be, such
Debentures shall cease to be outstanding, and interest, if any, on such
Debentures shall cease to accrue.
SECTION 2.10 TEMPORARY DEBENTURES.
The Company may execute temporary Debentures, and upon the Company's
Order, the Trustee shall authenticate and make such temporary Debentures
available for delivery. Temporary Debentures shall be printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
in the same series and principal amount and of like tenor as the definitive
Debentures in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the Officers of the
Company executing such Debentures may determine, as conclusively evidenced by
their execution of such Debentures. Such temporary Debentures may be in global
form.
Except in the case of temporary Debentures in global form, which shall
be exchanged in accordance with the provisions thereof, after the preparation of
definitive Debentures, the temporary Debentures shall be exchangeable for
definitive Debentures of the same series upon surrender of the temporary
Debentures at the Office or Agency of the Company designated for such purpose
pursuant to Section 2.04, without charge to the Holders thereof. Upon surrender
for cancellation of any one or more temporary Debentures, the Company shall
execute a like principal amount of definitive Debentures of the same series of
authorized denominations, and the Trustee, upon receipt of a Company Order,
shall authenticate and make such Debentures available for delivery in exchange
therefor. Until so exchanged, the temporary Debentures shall in all respects be
entitled to the same benefits under this Indenture as definitive Debentures.
SECTION 2.11 BOOK-ENTRY SYSTEM.
In order to utilize a book-entry-only system for all or any portion of
the Debentures of any series, all or a portion of the Debentures of any series
may be issued in the form of one or more fully registered Debentures of the same
series for the aggregate principal amount of such Debentures (a "Global
Debenture"), which Global Debenture shall be registered in the name of the
depository (the "Depository") selected by the Company or in the name of such
Depository's nominee. Each Global Debenture shall be delivered by the Trustee to
the Depository or pursuant
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to the Depository's instruction and shall bear a legend substantially to the
following effect: "This Debenture may be transferred, in whole but not in part,
only to another nominee of the Depository or to a successor Depository or to a
nominee of such successor Depository."
Notwithstanding any other provision of this Section or of Section 2.07,
a Global Debenture may be transferred in whole but not in part and in the manner
provided in Section 2.07, only by a nominee of the Depository for such series,
or by the Depository or any such nominee of a successor Depository for such
series selected or approved by the Company or to a nominee of such successor
Depository.
If (a) at any time the Depository for Global Debentures of any series
of Debentures notifies the Company that it is unwilling or unable to continue as
Depository for such Global Debentures or if at any time the Depository for such
Global Debentures shall no longer be a clearing agency registered or in good
standing under the Exchange Act or other applicable statute or regulation, and a
successor Depository for such Global Debentures is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, (b) the Company determines in its sole
discretion, that the Debentures of any series shall no longer be represented by
one or more Global Debentures and delivers to the Trustee an Officer's
Certificate evidencing such determination or (c) a Default or an Event of
Default occurs and is continuing, then the provisions of this Section shall no
longer apply to the Debentures of such series. In such event, the Company will
execute and the Trustee, upon receipt of an Officer's Certificate evidencing
such determination by the Company, will authenticate and deliver Debentures of
such series and of like tenor in definitive registered form, in authorized
denominations, and in aggregate principal amount equal to the principal amount
of the Global Debentures of such series in exchange for such Global Debentures.
Upon the exchange of Global Debentures for such Debentures in definitive
registered form without coupons, in authorized denominations, the Global
Debentures shall be canceled by the Trustee. Such Debentures in definitive
registered form issued in exchange for Global Debentures pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Debentures to the Persons in whose names such Debentures are so registered.
Except as provided above or as provided in any supplemental indenture,
owners of beneficial interests in a Global Debenture shall not be entitled to
receive physical delivery of Debentures in definitive form and will not be
considered the Holders thereof for any purpose under this Indenture.
Members of or participants in the Depository shall have no rights under
this Indenture with respect to any Global Debenture held on their behalf by the
Depository, and such Depository or its nominee, as the case may be, may be
treated by the Company, the Trustee, and any agent of the Company or the Trustee
as the Holder of such Global Debentures for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its members or participants, the
operation of customary practices governing exercise of the rights of a Holder of
any Debenture, including without limitation the granting of
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proxies or other authorization of participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which
a Holder is entitled to give or take under this Indenture.
SECTION 2.12 CANCELLATION.
All Debentures 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 shall be promptly canceled by the Trustee. The Company may at any
time deliver to the Trustee for cancellation any Debentures previously
authenticated and made available for delivery hereunder which the Company may
have acquired in any manner whatsoever, and all Debentures so delivered shall be
promptly canceled by the Trustee. The Company may not reissue or issue new
Debentures to replace Debentures it has paid or delivered to the Trustee for
cancellation. No Debentures shall be authenticated in lieu of or in exchange for
any Debentures canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Debentures held by the Trustee shall
be disposed of by the Trustee in accordance with its procedures for the
disposition of cancelled securities in effect as of the date of such
disposition, and the Trustee shall deliver a certificate of disposition to the
Company.
SECTION 2.13 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 3
REDEMPTION
SECTION 3.01 REDEMPTION; NOTICE TO TRUSTEE.
(a) The Company may redeem the Debentures of any series issued
hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 2.01.
(b) If any or all of the Debentures are to be redeemed pursuant to
this Section, the Company shall deliver to the Trustee no more than 60 and no
less than 45 days prior to the Redemption Date a Company Order specifying the
series and principal amount of Debentures to be redeemed and the Redemption Date
and Redemption Price for such Debentures. Such Company Order shall be
accompanied by a Board Resolution authorizing such redemption. If the Debentures
of a series are held by a Trust, the Company shall also deliver a copy of such
Company Order to the property trustee for such Trust (the "Property Trustee").
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SECTION 3.02 SELECTION OF DEBENTURES TO BE REDEEMED.
If less than all the outstanding Debentures of a series are to be
redeemed at any time, the Trustee shall select the Debentures of such series to
be redeemed by lot or by any other method the Trustee considers fair and
appropriate. The Trustee shall make the selection at least 30 but not more than
60 days before the Redemption Date from outstanding Debentures of such series
not previously called for redemption. Provisions of this Indenture that apply to
Debentures called for redemption also apply to portions of Debentures called for
redemption. The Trustee shall notify the Company promptly of the Debentures or
portions of Debentures to be redeemed.
SECTION 3.03 NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before the Redemption Date,
the Trustee, in the Company's name and at the Company's expense, shall mail or
cause to be mailed a notice of redemption by first-class mail, postage prepaid,
to each Holder of Debentures to be redeemed at such Holder's last address as it
appears in the Register.
The notice of redemption shall identify the Debentures to be redeemed,
the provision of the Debentures or this Indenture pursuant to which the
Debentures called for redemption are being redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the name and address of the Paying Agent;
(d) that payment of the Redemption Price of Debentures called for
redemption will be made only upon surrender of such Debentures to the Paying
Agent;
(e) if fewer than all the outstanding Debentures of any series are
to be redeemed, the identification and principal amounts of the particular
Debentures to be redeemed and that, on and after the Redemption Date, upon
surrender of such Debentures, a new Debenture or Debentures of the same series
and of like tenor and in a principal amount equal to the unredeemed portion
thereof will be issued;
(f) that, unless the Company defaults in paying the Redemption
Price of the Debentures called for redemption, including accrued interest
thereon to the Redemption Date, interest will cease to accrue on such Debentures
on and after the Redemption Date;
(g) that the redemption is for a sinking fund, if such is the
case;
(h) in the case of Debentures of any series that are convertible
or exchangeable into Capital Stock, the conversion or exchange price or rate,
the date or dates on which or the period or periods during which the right to
convert or exchange the principal of the Debentures of such series to be
redeemed will commence or terminate and the place or places where such
Debentures may be surrendered for conversion or exchange; and
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(i) the CUSIP numbers, if any.
Any notice of redemption given in the manner provided herein shall be
conclusively presumed to have been given, whether or not such notice is actually
received. Failure to mail any notice or defect in the mailed notice or the
mailing thereof in respect of any Debenture shall not affect the validity of the
redemption of any other Debenture.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION.
After notice of redemption has been given, Debentures called for
redemption shall become due and payable on the Redemption Date at the Redemption
Price and from and after the Redemption Date (unless the Company shall default
in the payment of the Redemption Price and accrued interest), such Debentures
shall cease to bear interest. Upon the later of the Redemption Date and the date
such Debentures are surrendered to the Paying Agent, such Debentures shall be
paid at the Redemption Price, plus accrued interest to the Redemption Date,
provided that installments of interest on Debentures with an Interest Payment
Date which is on or prior to the Redemption Date shall be payable to the Holders
of such Debentures, registered as such at the close of business on the Regular
Record Dates therefor according to their terms and provisions.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date, the Company shall deposit with the
Paying Agent (or if the Company or an Affiliate is the Paying Agent, shall
segregate and hold in trust or cause such Affiliate to segregate and hold in
trust) money sufficient to pay the Redemption Price of, and accrued interest on,
all Debentures to be redeemed on that Redemption Date. The Paying Agent shall
return to the Company any money in excess of the amount sufficient to pay the
Redemption Price of, and accrued interest on, all Debentures to be redeemed and
any interest accrued on the amount deposited pursuant to this Section.
SECTION 3.06 DEBENTURES REDEEMED IN PART.
Upon surrender of a Debenture that is redeemed in part, the Trustee
shall authenticate for the Holder a new Debenture of the same series and in a
principal amount equal to the unredeemed portion of such Debenture.
ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
(a) The Company shall pay the principal of and premium, if any,
and interest (including interest accruing during any Extension Period and/or on
or after the filing of a petition in bankruptcy or reorganization relating to
the Company, whether or not a claim for post-filing interest is allowed in such
proceeding) on the Debentures on or prior to the dates and in the manner
provided in such Debentures or pursuant to this Indenture. An installment of
principal, premium, if any, or interest shall be considered paid on the
applicable due date if on such date the Trustee or the Paying Agent holds, in
accordance with this Indenture, money sufficient to pay all of such installment
then due. With respect to any Debenture, the Company shall pay interest
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on overdue principal and interest on overdue installments of interest (including
interest accruing during any Extension Period and/or on or after the filing of a
petition in bankruptcy or reorganization relating to the Company, whether or not
a claim for post-filing interest is allowed in such proceeding), to the extent
lawful, at the rate accruing on such Debenture, compounded with the same
frequency as interest is payable on such Debentures. Interest on overdue
interest shall accrue from the date such amounts become overdue.
(b) Notwithstanding the provisions of Section 4.01 (a) or any
other provision herein to the contrary, the Company shall have the right, as
provided in an Officer's Certificate or supplemental indenture issued pursuant
to Section 2.01, in its sole and absolute discretion at any time and from time
to time while the Debentures of any series are outstanding, so long as no Event
of Default with respect to such series of Debentures has occurred and is
continuing, to defer payments of interest by extending the interest payment
period for such series of Debentures for the maximum consecutive period, if any,
specified for such series of Debentures, provided that such Extension Period
must end on an Interest Payment Date and shall not extend beyond the Stated
Maturity Date or Redemption Date of any Debenture of such series, and provided
further that at the end of each Extension Period the Company shall pay all
interest then accrued and unpaid (together with interest thereon to the extent
permitted by applicable law at the rate accruing on such Debentures). Prior to
the termination of an Extension Period, the Company may shorten or may further
extend the interest payment period for such series of Debentures, provided that
such Extension Period together with all such previous and further extensions may
not exceed the maximum consecutive period specified for such series of
Debentures, end on a date other than an Interest Payment Date or extend beyond
the Stated Maturity Date or Redemption Date of any Debenture of such series. The
Company shall give the Trustee notice of the Company's election to begin an
Extension Period for any series of Debentures and any shortening or extension
thereof at least five Business Days prior to: (i) the date notice of payment of
interest on such Debentures is required to be given to any national securities
exchange on which the related Preferred Securities, if any, or Debentures are
then listed or other applicable self-regulatory organization or (ii) the date of
the notice of the record or payment date of the related distribution on the
Preferred Securities issued by the Trust which is the Holder of the Debentures
of such series, but in any event not less than five Business Days prior to the
Record Date fixed by the Company for the payment of such interest. The Company
shall give or cause the Trustee to give notice (a form of which shall be
provided by the Company to the Trustee) of the Company's election to begin an
Extension Period to the Holders by first class mail, postage prepaid.
SECTION 4.02 PROHIBITION AGAINST DIVIDENDS, ETC.
The Company shall not (a) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with respect to,
any of the Company's Capital Stock or (b) make any payment of principal of or
premium, if any, or interest on or repay or repurchase or redeem any debt
securities of the Company (including Debentures) that rank pari passu with or
junior in right of payment to the Debentures or (c) make any guarantee payments
with respect to any guarantee by the Company of the debt securities of any
Subsidiary of the Company (including any Guarantee) if such guarantee ranks pari
passu or junior in right of payment to the Debentures (other than (i) dividends
or distributions in shares of, or options, warrants or rights to subscribe for
or purchase shares of, Common Stock of the Company, (ii)
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any declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto,
(iii) payments under any Guarantee, (iv) as a result of a reclassification of
the Company's Capital Stock or the exchange or conversion of one class or series
of the Company's Capital Stock for another class or series of the Company's
Capital Stock, including, without limitation, the conversion of the Company's
Class B common stock into shares of the Company's Class A common stock, (v) the
purchase of fractional interests in shares of the Company's Capital Stock
pursuant to the conversion or exchange provisions of such Capital Stock or the
security being converted or exchanged, and (vi) purchases of Common Stock
related to the issuance of Common Stock or rights under any of the Company's
benefit plans for its directors, officers or employees or any of the Company's
dividend reinvestment plans): (X) during any Extension Period, (Y) if at such
time there shall have occurred and is continuing any Default or Event of
Default, or (Z) if the Company shall be in default with respect to its payment
or other obligations under any Guarantee.
SECTION 4.03 SEC REPORTS.
The Company shall file with the Trustee, within 15 days after it files
them with the SEC, copies of its annual report and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the Company
is not subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the Trustee such information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which are specified in
Section 13 or 15(d) of the Exchange Act. The Company shall also comply with the
provisions of Section 314(a) of the TIA.
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 Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
SECTION 4.04 COMPLIANCE CERTIFICATES.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each of the Company's fiscal years, an Officer's Certificate
stating whether or not the signer knows of any Default or Event of Default. Such
certificate shall contain a certification from the Principal Executive Officer,
Principal Financial Officer or Principal Accounting Officer of the Company as to
his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section, such compliance
shall be determined without regard to any period of grace or requirement of
notice provided under this Indenture. If such Officer does know of such a
Default or Event of Default, the Officer's Certificate shall describe any such
Default or Event of Default, and its status. Such Officer's Certificate need not
comply with Sections 13.04 and 13.05.
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(b) The Company shall deliver to the Trustee any information
reasonably requested by the Trustee in connection with the compliance by the
Trustee or the Company with the TIA.
SECTION 4.05 FURTHER INSTRUMENTS AND ACTS.
Upon request of the Trustee, the Company shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.
SECTION 4.06 PAYMENT OF EXPENSES OF EACH TRUST.
The Company covenants for the benefit of the Holders of each series of
Debentures to pay all of the obligations, costs and expenses of such Trust
(other than payments in respect of Trust Securities) in accordance with the
provisions of its Trust Agreement and to pay the taxes of such Trust in
accordance with the provisions of its Trust Agreement in order to permit such
Trust to make distributions on and redemptions of its Preferred Securities in
accordance with such Trust Agreement.
SECTION 4.07 OWNERSHIP OF COMMON SECURITIES.
So long as the Trust Securities of each Trust remain outstanding, the
Company hereby covenants (a) to maintain 100% direct or indirect ownership of
the common securities issued by such Trust (it being understood that any
permitted successor of the Company under this Indenture may succeed to the
Company's ownership of such common securities), (b) to use its best efforts to
cause each Trust (i) to remain a business trust, except in connection with the
distribution of Debentures to the holders of related Trust Securities in
liquidation of such Trust, the conversion, exchange or redemption of all of such
Trust Securities, or certain mergers, consolidations or amalgamations, each as
permitted by the applicable Trust Agreement, and (ii) to otherwise continue to
be classified as a grantor trust for United States federal income tax purposes,
(c) to use its reasonable best efforts to cause each holder of each Trust's
Trust Securities to be treated as owning an undivided beneficial interest in the
related Debentures and (d) not to cause, as sponsor of each Trust, or to permit,
as holder of the common securities, the dissolution, liquidation or winding-up
of any Trust, except as provided in the applicable Trust Agreement.
SECTION 4.08 STATEMENT BY OFFICERS AS TO DEFAULT.
The Company shall deliver to the Trustee, as soon as possible and in
any event within five Business Days after the Company becomes aware of the
occurrence of any Event of Default or an event which, with notice or the lapse
of time or both, would constitute an Event of Default, an Officer's Certificate
setting forth the details of such Event of Default or default and the action
which the Company proposes to take with respect thereto.
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ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 WHEN THE COMPANY MAY MERGE, ETC.
The Company may not consolidate with or merge with or into, or sell,
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety (either in one transaction or a series of
transactions) to, any Person, and no Person shall 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:
(a) the Person formed by or surviving such consolidation or merger
or to which such sale, conveyance, transfer or lease shall have been made (the
"Successor") if other than the Company (i) is organized and existing under the
laws of the United States of America or any state thereof or the District of
Columbia, and (ii) shall expressly assume by a supplemental indenture, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Debentures, this Indenture and the
Guarantees;
(b) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor Person or
any Subsidiary as a result of such transaction as having been incurred by such
Person or such Subsidiary at the time of such transaction), no Default or Event
of Default shall have occurred and be continuing; and
(c) the Company delivers to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that such consolidation, merger, sale,
conveyance, transfer or lease and such supplemental indenture comply with this
Indenture.
The Successor will be the successor to the Company, and will be
substituted for, and may exercise every right and power and become the obligor
on the Debentures with the same effect as if the Successor had been named as the
Company herein but, in the case of a sale, conveyance, transfer or lease of all
or substantially all of the assets of the Company, the predecessor Company will
not be released from its obligation to pay the principal of and premium, if any,
and interest on the Debentures.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Debentures 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 Officer's Certificate establishing
the terms of such series pursuant to this Indenture:
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(a) default in the payment, when due, of interest on any Debenture
of that series and the default continues for a period of 30 days; provided, that
during any Extension Period for the Debentures of that series, failure to pay
interest on the Debentures of that series shall not constitute a Default or
Event of Default hereunder, or
(b) default in the payment of the principal of or premium, if any,
on any Debenture of such series when it becomes due, whether at maturity, upon
any redemption, by declaration of acceleration of maturity or otherwise; or
(c) default in the deposit of any sinking fund payment when and as
due by the terms of a Debenture of such series; or
(d) default in the performance or breach of any covenant or
agreement of the Company in this Indenture (other than a covenant or agreement 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 Debentures), and continuance of such
breach or default for a period of 90 days after receipt by the Company of a
"Notice of Default"; or
(e) a court of competent jurisdiction enters:
(i) a decree or order for relief in respect of the
Company in an involuntary proceeding under any applicable Bankruptcy
Law and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(ii) a decree or order adjudging the Company to be
insolvent, or approving a petition seeking reorganization, arrangement,
adjustment or composition of the Company and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a
Custodian of the Company or of any substantial part of the property of
the Company, or ordering the winding up or liquidation of the affairs
of the Company; or
(f) the Company pursuant to or within the meaning of any
Bankruptcy Law: (i) commences a voluntary case or proceeding; (ii) consents to
the entry of an order for relief against it in an involuntary case or
proceeding; (iii) files a petition or answer or consent seeking reorganization
or relief or consents to such filing or to the appointment of or taking
possession by a Custodian of it or for all or substantially all of its property,
and such Custodian is not discharged within 60 days; (iv) makes a general
assignment for the benefit of its creditors; or (v) admits in writing its
inability to pay its debts generally as they become due; or
(g) if applicable, failure by the Company to deliver the required
securities or other rights upon an appropriate conversion or exchange election
by Holders of the Debentures or the related Preferred Securities; or
(h) any other Event of Default provided in or pursuant to this
Indenture with respect to Debentures of such series.
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The term "Bankruptcy Law" means Title 11 of the United States Code, or
any similar federal or state bankruptcy, insolvency, reorganization or other law
for the relief of debtors. "Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator, custodian or similar official under any Bankruptcy
Law.
A Default under clause (d) above is not an Event of Default until (i)
the Trustee provides a "Notice of Default" to the Company or the Holders of at
least 25% in aggregate principal amount of the Debentures of that series at the
time outstanding or, if that series of Debentures is held by a Trust, the
holders of at least 25% in aggregate liquidation amount of the outstanding
Preferred Securities of that Trust provide a "Notice of Default" to the Company
and the Trustee and (ii) the Company does not cure such Default within the time
specified in clause (d) above after receipt of such notice. Any such notice must
specify the Default, demand that it be remedied and state that such notice is a
"Notice of Default."
SECTION 6.02 ACCELERATION.
If any Event of Default with respect to the Debentures of any series
other than an Event of Default under clause (e) or (f) of Section 6.01 occurs
and is continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of the Debentures of that series then outstanding may declare
the principal of, and any accrued interest on, all the Debentures of that series
due and payable immediately, provided that in the case of a series of Debentures
then held by a Trust, if upon an Event of Default with respect to the Debentures
of that series the Trustee has, or the Holders of at least 25% in aggregate
principal amount of the Debentures of that series then outstanding have, failed
to declare the principal of, and any accrued interest on, the Debentures of that
series to be immediately due and payable, the holders of at least 25% in
aggregate liquidation amount of the outstanding Preferred Securities of that
Trust shall have such right by a notice in writing to the Company and the
Trustee. If an Event of Default specified in clause (e) or (f) of Section 6.01
occurs, the principal of, and any accrued interest on, all the Debentures shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Debentureholders.
The foregoing paragraph, however, is subject to the condition that if,
at any time after the principal of the Debentures of that series shall have been
so declared due and payable, and before any judgment or decree for the payment
of the moneys due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest upon all the Debentures of that series and
the principal of and premium, if any, on all Debentures of that series which
shall have become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at the
rate accruing on the Debentures of that series to the date of such payment or
deposit) and the amount payable to the Trustee under Section 7.07, and any and
all Defaults under the Indenture, other than the nonpayment of principal of and
interest on Debentures of that series which shall not have become due by their
terms, shall have been remedied or waived as provided in Section 6.04, then and
in every such case the Holders of at least a majority in aggregate principal
amount of the Debentures of that series then outstanding (subject to, in the
case of any series of Debentures held as assets of a Trust and with respect to
which a Security Exchange has not theretofore occurred, such consent of the
holders of the Preferred Securities and the Common
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Securities of such Trust as may be required under the Trust Agreement of such
Trust), by written notice to the Company and to the Trustee, may rescind and
annul such declaration and its consequences with respect to that series of
Debentures; but no such rescission and annulment shall extend to or shall affect
any subsequent default, or shall impair any right consequent thereon.
SECTION 6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may, in
its own name or as trustee of an express trust, institute, pursue and prosecute
any proceeding, including without limitation, any action at law or suit in
equity or other judicial or administrative proceeding to collect the payment of
principal of or premium, if any, or interest on the Debentures of the series
that is in default, to enforce the performance of any provision of the
Debentures of that series or this Indenture or to obtain any other available
remedy.
The Trustee may maintain a proceeding even if it does not possess any
of the Debentures or does not produce any of the Debentures in the proceeding. A
delay or omission by the Trustee, any Debentureholder or the holders of
Preferred Securities in exercising any right or remedy accruing upon an Event of
Default shall not impair such right or remedy or constitute a waiver of, or
acquiescence in, such Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
SECTION 6.04 WAIVER OF PAST DEFAULTS.
If a Default or Event of Default with respect to a series of Debentures
has occurred and is continuing, the Holders of at least a majority in aggregate
principal amount of the Debentures of that series at the time outstanding, or,
if that series of Debentures is held by a Trust, the holders of at least a
majority in aggregate liquidation amount of the Preferred Securities of that
Trust, in each case by notice to the Trustee and the Company, may waive an
existing Default or Event of Default and its consequences except a Default or
Event of Default in the payment of the principal of or premium, if any, or
interest on any Debenture of that series (unless such Event of Default has been
cured and a sum sufficient to pay all matured installments of interest and
premium, if any and principal due otherwise than by acceleration has been
deposited with the Trustee) or a default in respect of a covenant or provision
which under this Indenture cannot be modified or amended without the consent of
the holder of each outstanding Debenture of that series. When a Default or Event
of Default is waived, it is deemed cured and shall cease to exist, but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any consequent right.
SECTION 6.05 CONTROL BY HOLDERS.
The Holders of at least a majority in aggregate principal amount of the
Debentures of a series or, if that series of Debentures is held by a Trust, the
holders of at least a majority in aggregate liquidation amount of the Preferred
Securities of that Trust, may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or of exercising any
trust or power conferred on the Trustee, in respect of such series of
Debentures. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture
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or that the Trustee determines in good faith is unduly prejudicial to the rights
of other Debentureholders or may involve the Trustee in personal liability. The
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, including withholding notice to the Holders of
the Debentures of continuing default (except in the payment of the principal of
(other than any mandatory sinking fund payment) or premium, if any, or interest
on any Debentures) if the Trustee considers it in the interest of the Holders of
the Debentures to do so.
SECTION 6.06 LIMITATION ON SUITS.
Except as provided in Section 6.07 or 6.08, no Holder of any series of
Debentures or holder of Preferred Securities of the Trust that is the Holder of
such series of Debentures may pursue any remedy with respect to this Indenture
or the Debentures unless:
(a) the Holders of Debentures of such series or the holders of
such Preferred Securities give to the Trustee written notice stating that an
Event of Default with respect to the corresponding Debentures of such series has
occurred and is continuing;
(b) the Holders of at least 25% in aggregate principal amount of
the outstanding Debentures of that series or the holders of at least 25% in
aggregate liquidation amount of such Preferred Securities make a written request
to the Trustee to pursue a remedy;
(c) the Holders of Debentures of such series or the holders of
such Preferred Securities provide to the Trustee reasonable security and
indemnity against any loss, liability or expense satisfactory to the Trustee;
(d) the Trustee does not comply with the request within 60 days
after receipt of the notice, the request and the offer of security and
indemnity; and
(e) during such 60 day period, the Holders of at least a majority
in aggregate principal amount of the Debentures of that series or the holders of
at least a majority in aggregate liquidation amount of such Preferred Securities
do not give the Trustee a direction inconsistent with the request, 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 Debenture to affect, disturb or prejudice the rights of any
other such Holders, or to obtain or seek to obtain priority or preference over
any other of such Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 6.07 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision of this Indenture, the Holder of
any Debenture shall have the right which is absolute and unconditional to
receive payment of the principal of, premium, if any, and (subject to Section
2.02) interest on such Debenture on the respective due dates expressed in such
Debenture (or, in the case of redemption, on the Redemption Date) and to convert
or exchange such Debentures in accordance with its terms, if applicable, and to
institute suit for the enforcement of such payment or conversion or exchange,
and such right shall not be impaired without the consent of such Holder.
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SECTION 6.08 DIRECT ACTION RIGHT OF HOLDERS OF TRUST PREFERRED SECURITIES.
If an Event of Default has occurred and is continuing and is
attributable either to (a) the failure of the Company to pay the principal of or
premium, if any, or interest on the Debentures on the due date therefor or (b)
the failure by the Company to deliver the required securities or other rights
upon an appropriate conversion or exchange right election, and an event of
default has occurred and is continuing under the applicable Trust Agreement, a
holder of the related Preferred Securities, in lieu of any action that may
otherwise be taken hereunder as a Holder of Debentures, may institute a legal
proceeding directly against the Company for enforcement of payment to such
holder of the principal of or premium, if any, or interest on such Debentures
having a principal amount equal to the liquidation amount of the Preferred
Securities held by such holder or for enforcement of such conversion or exchange
rights, as the case may be (a "Direct Action"). Notwithstanding anything
contained herein to the contrary, the Company may not amend this Indenture to
remove the foregoing right to bring a Direct Action without the prior written
consent of the holders of all of the Preferred Securities outstanding.
Notwithstanding any payments made to a holder of Preferred Securities by the
Company in connection with a Direct Action, the Company shall remain obligated
to pay the principal of and premium, if any, or interest on the related
Debentures, and the Company shall be subrogated to the rights of the holder of
such Preferred Securities with respect to payments on the Preferred Securities
to the extent of any payments made by the Company to such holder in any Direct
Action.
SECTION 6.09 COLLECTION SUITS BY THE TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any interest on any
Debenture when such interest becomes due and payable and such default continues
for a period of 30 days, or
(b) default is made in the payment of the principal of or premium,
if any, on any Debenture on the Stated Maturity Date or Redemption Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of such Debenture, the whole amount then due and payable on such
Debenture for principal, premium, if any, and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium, if any, and on any overdue interest, at the rate or rates
prescribed therefor in such. Debenture and in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Debenture and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Debenture, wherever
situated.
If an Event of Default with respect to Debentures 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
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Holders of Debentures of such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Debentures or in aid of the exercise of any power granted
herein, or to enforce any other remedy available under this Indenture or by law.
SECTION 6.10 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 or its properties or assets, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the
principal of and premium, if any, and interest on the Debentures 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 and counsel) and
of the Holders of Debentures allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07.
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
Debenture any plan of reorganization, arrangement, adjustment or composition
affecting the Debentures or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.11 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall,
subject to Article 10, pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders of Debentures in respect of which or for
the benefit of which such money has been collected
for amounts due and unpaid on such Debentures for the
principal thereof or premium, if any, or interest, if
any, thereon ratably, without preference or priority
of any kind, according to such amounts due and
payable on such Debentures; and
THIRD: the balance, if any, to the Company.
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Except as otherwise set forth in the Debentures, the Trustee may fix a
Record Date and payment date for any payment to Debentureholders pursuant to
this Section.
SECTION 6.12 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant (other than the Trustee) in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit by
the Trustee, a suit by a Holder of Debentures or holder of Preferred Securities
pursuant to Section 6.07 or 6.08 or a suit by Holders of Debentures of more than
10% in aggregate principal amount of the outstanding Debentures of any series
or, if a series of Debentures is held by a Trust, the holders of more than 10%
in aggregate liquidation amount of the Preferred Securities of that Trust.
ARTICLE 7
THE TRUSTEE
SECTION 7.01 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
(a) If an Event of Default occurs and is continuing with respect
to the Debentures of any series, the Trustee shall exercise the rights and
powers vested in it by this Indenture with respect to that series and use the
same degree of care and skill in its exercise as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default with
respect to the Debentures of any series, (i) the Trustee need perform only those
duties with respect to that series that are specifically set forth in this
Indenture or the TIA and no others; and (ii) 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.
However, in the case of any certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but shall not be required to
confirm or investigate the accuracy of mathematical calculations or other facts
stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this clause (c) does not limit the effect of Section
7.01(b);
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
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(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to Section 7.01 (a), (b), (c) and (e) and Section 7.02.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives security and indemnity reasonably satisfactory
to it against any loss, liability or expense (including reasonable counsel
fees).
(f) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur personal liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it under the terms of this
Indenture or indemnity reasonably satisfactory to the Trustee against such risk
or liability is not reasonably assured to it.
(g) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall not be liable for interest on any money held by it hereunder except as
otherwise agreed with the Company.
SECTION 7.02 RIGHTS OF THE TRUSTEE.
Subject to Sections 315(a) through 315(d) of the TIA:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other evidence of indebtedness 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;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Order (in each case, other than delivery
of any Debenture to the Trustee for authentication and delivery pursuant to
Section 2.03 which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
shall be herein specifically prescribed) may, in the absence of negligence or
bad faith on its part, rely upon an Officer's Certificate;
(d) 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 protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
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(e) 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 Debentures of any series pursuant
to this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine, during
business hours and upon reasonable notice, the books, records and premises of
the Company, personally or by agent or attorney at the reasonable cost of the
Company;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has 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 Debentures and this Indenture; and
(i) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
SECTION 7.03 NOT RESPONSIBLE FOR RECITALS OR ISSUANCES OF DEBENTURES.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Debentures. The Trustee shall not be accountable for the
Company's use of the proceeds from the Debentures, and the Trustee shall not be
responsible for any statement in this Indenture or the Debentures or any report
or certificate issued by the Company hereunder or any registration statement
relating to the Debentures (other than the Trustee's Certificate of
Authentication and the Trustee's Statement of Eligibility on Form T-1), or the
determination as to which beneficial owners are entitled to receive any notices
hereunder.
SECTION 7.04 MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Debentures and, subject to Sections
608 and 613 of the TIA, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
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SECTION 7.05 NOTICE OF DEFAULTS.
If a Default occurs and is continuing with respect to the Debentures
of any series and if it is known to the Trustee, the Trustee shall mail to each
Holder of a Debenture of that series notice of the Default within 90 days after
it becomes known to the Trustee unless such Default shall have been cured or
waived. Except in the case of a Default described in Section 6.01(a), (b) or
(g), the Trustee may withhold such notice if and so long, as a committee of
Responsible Officers in good faith determines that the withholding of such
notice is in the interests of the Holders of the Debentures of that series. The
Trustee shall not be charged with knowledge of any Default unless a Responsible
Officer assigned to the Corporate Trust Department of the Trustee shall have
actual knowledge of the Default. The second sentence of this Section shall be
in lieu of the proviso to TIA Section 315(b). Said proviso is hereby expressly
excluded from this Indenture, as permitted by the TIA.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each September 1, beginning with the September 1
next following the date of this Indenture, the Trustee shall mail to each
Debentureholder, and such other holders that have submitted their names to the
Trustee for such purpose, a brief report dated as of such September 1 in
accordance with and to the extent required under TIA Section 313.
A copy of each report at the time of its mailing to Debentureholders
shall be filed with the Company, the SEC and any securities exchange on which
the Debentures are listed. The Company agrees to promptly notify the Trustee
whenever the Debentures become listed on any securities exchange and of any
listing, thereof.
SECTION 7.07 COMPENSATION AND INDEMNITY.
The Company covenants and agrees:
(a) to pay to the Trustee from time to time such compensation as
shall be agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Trustee upon its request for reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, and advances of its agents and counsel),
including all reasonable expenses and advances incurred or made by the Trustee
in connection with any Default or Event of Default or any membership on any
creditors' committee, except any such expense or advance as may be attributable
to its negligence, willful misconduct or bad faith; and
(c) to the fullest extent permitted by law, to indemnify each of
the Trustee, or any predecessor Trustee, its officers, employees, directors and
shareholders, for, and to hold it harmless against, any and all loss, damage,
claim, liability or expense, including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee or any predecessor
Trustee), incurred without negligence or willful misconduct on its part,
arising out of
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or in connection with the acceptance or administration of this trust, including
the reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder.
Before, after or during an Event of Default with respect to the
Debentures of a series, the Trustee shall have a claim and lien prior to the
Debentureholders of that series as to all property and funds held by it
hereunder for any amount owing it for its fees and expenses or any predecessor
Trustee pursuant to this Section, except with respect to funds held by the
Trustee or any Paying Agent in trust for the payment of principal of or
premium, if any, or interest on Debentures pursuant to Section 2.05 or Section
8.01.
The Company's payment and indemnity obligations pursuant to this
Section are not subject to Article 10 of this Indenture and shall survive the
discharge of this Indenture. When the Trustee renders services or incurs
expenses after the occurrence of a Default specified in Section 6.01, the
compensation for services and expenses are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08 ELIGIBILITY; DISQUALIFICATION.
(a) The Trustee shall at all times satisfy the requirements of the
TIA Sections 310(a)(1) and 310(a)(2). The Trustee (or any Affiliate thereof
which has unconditionally guaranteed the obligations of the Trustee hereunder)
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recently published annual report of condition. 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.
(b) The Trustee shall comply with TIA Section 310(b). In
determining whether the Trustee has conflicting interests as defined in TIA
Section 310(b)(1), the provisions contained in the proviso to TIA Section
310(b)(1) and the Trustee's Statement of Eligibility on Form T-1 shall be
deemed incorporated herein.
SECTION 7.09 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 7.10.
(b) The Trustee may resign at any time with respect to the
Debentures 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 7.10 shall not have been delivered to the Trustee within 60 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Debentures of such series.
(c) If the Trustee has or shall acquire any conflicting interest,
as defined in Section 310(b) of the TIA, with respect to the Debentures of any
series, it shall, within 90 days after ascertaining it has such conflicting
interest, either eliminate the conflicting interest or resign with respect to
the Debentures of that series in the manner set forth in this Section.
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(d) The Trustee may be removed at any time with respect to the
Debentures of any series by Act of the Holders of at least a majority in
principal amount of the outstanding Debentures of such series, delivered to the
Trustee and to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of removal, the Trustee being removed may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(e) If at any time:
(i) the Trustee shall fail to comply with clause (c) of
this Section after written request therefor by the Company or by any
Holder of a Debenture who has been a bona fide Holder of a Debenture
for at least six months; or
(ii) the Trustee shall cease to be eligible under Section
7.08(a) and shall fail to resign after written request therefor by the
Company or by any such Holder; or
(iii) the Trustee shall become incapable of acting or shall
be adjudged bankrupt or insolvent, or a receiver of 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, (1) the Company by a Board Resolution may remove the Trustee
with respect to all Debentures, or (2) subject to Section 6.12, any
Holder of a Debenture who has been a bona fide Holder of a Debenture
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 Debentures of such
series and the appointment of a successor Trustee or Trustees.
(f) 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 Debentures 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 Debentures of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Debentures of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Debentures of any particular
series) and shall comply with the applicable requirements of Section 7.10. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Debentures
of any series shall be appointed by Act of the Holders of at least a majority
in principal amount of the outstanding Debentures of such series, notice of
such appointment shall be 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 7.10,
become the successor Trustee with respect to the Debentures of such series and
to that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Debentures of any series shall have been
so appointed by the Company or the Holders of Debentures and accepted
appointment in the manner required by Section 7.10, any Holder of a Debenture
who has been a bona fide Holder of a Debenture of such series for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent
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jurisdiction for the appointment of a successor Trustee with respect to the
Debentures of such series.
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debentures of any series and each
appointment of a successor Trustee with respect to the Debentures of any series
in the manner provided in Section 13.02. Each notice shall include the name of
the successor Trustee with respect to the Debentures of such series and the
address of its Corporate Trust Office.
SECTION 7.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Debentures, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Debentures of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Debentures of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and deeds of the Trustee with respect to the
Debentures of that or those series which the appointment of such successor
Trustee relates, (ii) if the retiring Trustee is not retiring with respect to
all Debentures, 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 Debentures of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (iii) 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 as co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debentures of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Debentures of that or those
series to which the appointment of such successor Trustee relates.
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(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 7.11 SUCCESSOR TRUSTEE BY MERGER.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to
another corporation or banking association, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 8.01 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 Debentures as
specified in such Company Order, 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
(a) either:
(i) all Debentures of such series theretofore
authenticated and delivered (other than (1) Debentures of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 2.08, and (2) Debentures 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
8.04) have been delivered to the Trustee for cancellation; or
(ii) all Debentures of such series not theretofore
delivered to the Trustee for cancellation:
(1) have become due and payable; or
(2) will become due and payable at their stated
maturity within one year; or
(3) 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
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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 (1), (2) or (3) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
such purpose, (a) cash (which may be held in an interest bearing
account insured by the Federal Deposit Insurance Corporation), or (b)
U.S. Government Obligations, maturing as to principal and interest at
such times and in such amounts as will ensure the availability of
cash, or (c) a combination thereof, in an amount sufficient to pay and
discharge the entire indebtedness on such Debentures not theretofore
delivered to the Trustee for cancellation, including the principal of,
and premium, if any, and interest on such Debentures, to the date of
such deposit (in the case of Debentures which have become due and
payable) or to the Stated Maturity Date or Redemption Date thereof, as
the case may be together with an Officer's Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have
been complied with; and
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the outstanding Debentures of
such series.
In the event there are Debentures 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
Debentures 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 Debentures, the obligations of the Company to the
Trustee under Section 7.07 and, if money shall have been deposited with the
Trustee pursuant to clause (a)(ii) of this Section, the following obligations
of the Company and the Trustee with respect to the Debentures of such series,
shall survive: (i) the rights of registration of transfer and exchange of
Debentures of such series; (ii) the replacement of apparently mutilated,
defaced, destroyed, lost or stolen Debentures of such series; (iii) the rights
of the Holders of the Debentures of such series to receive payments of the
principal of and premium, if any, interest on the Debentures of such series;
(iv) the rights of the Holders of the Debentures of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them; (v) the obligation of the Company to maintain an
Office or Agency for payments on and registration of transfer of the Debentures
of such series; (vi) the rights, obligations and immunities of the Trustee
hereunder; and (vii) any rights to convert or exchange the Debentures of such
series into other securities or rights in accordance with their terms.
SECTION 8.02 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF
DEBENTURES.
Subject to Section 8.04, all moneys deposited with the Trustee
pursuant to Section 8.01 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the Holders of the Debentures of the series
for the payment or redemption of which such moneys have been deposited with the
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Trustee, of all sums due and to become due thereon for principal and interest,
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 8.03 REPAYMENT OF MONEYS HELD BY PAYING AGENT.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under this Indenture shall, upon
demand of the Company, be repaid to it or paid to the Trustee, and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
SECTION 8.04 RETURN OF MONEYS HELD BY THE TRUSTEE AND PAYING AGENT
UNCLAIMED FOR TWO YEARS.
Any moneys deposited with or paid to the Trustee or any Paying Agent
for the payment of the principal of and premium, if any, or interest on the
Debentures of any series and not applied but remaining unclaimed for two years
after the date when such principal, premium, if any, or interest shall have
become due and payable shall, unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law, be repaid to the
Company by the Trustee or such Paying Agent, and the Holders of such Debentures
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Company
for any payment which such Holder may be entitled to collect as a general
unsecured creditor, and all liability of the Trustee or any Paying Agent with
respect to such moneys shall thereupon cease.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
From time to time, when authorized by a resolution of the Board of
Directors, the Company and the Trustee, without notice to or the consent of any
Holders of the Debentures, may amend or supplement this Indenture:
(a) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
contained herein and in the Debentures; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Debentures (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power herein
conferred upon the Company; provided, however, that in respect of any such
additional covenant, or restriction or condition on the Company, such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate, enforcement upon such default
or may limit the remedies available to the Trustee upon such default; or
(c) to add any additional Events of Default with respect to all or
any series of Debentures (as shall be specified in such supplemental
indenture); or
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(d) to change or eliminate any of the provisions of this
Indenture, provided, that any such change or elimination shall become effective
only when there is no Debenture outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(e) to establish the form or terms of Debentures of any series as
permitted by Section 2.01 or, in lieu of any such supplemental indenture, the
Company may provide the Trustee with an Officer's Certificate with respect to
the form or terms of such Debentures; or
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debentures 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; or
(g) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be defective or inconsistent
with any other provision herein or in any supplemental indenture, 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
Debentures of any series then outstanding in any material respect; or
(h) 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 Debentures as herein set forth; or
(i) to maintain qualification of this Indenture under the TIA; or
(j) 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 Debentures provided that any such action shall not
adversely affect the interests of any Holder of a Debenture of such series or
any other Debenture in any material respect.
SECTION 9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
The Company and the Trustee may amend this Indenture in any manner not
permitted by Section 9.01 or may waive future compliance by the Company with
any provisions of this Indenture with the consent of the Holders of at least a
majority in aggregate principal amount of the Debentures of each series
affected thereby then outstanding (and, in the case of any series of Debentures
held as assets of a Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of holders of the Preferred Securities and
the common securities of such Trust as may be required under the Trust
Agreement of such Trust). Such an amendment or waiver may not, without the
consent of each Holder of any Debenture affected thereby:
(a) reduce the principal amount of such Debentures;
(b) reduce the percentage of the principal amount of such
Debentures the Holders of which must consent to an amendment of this Indenture
or a waiver;
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(c) change (i) the stated maturity of the principal of or the
interest on such Debentures, except in connection with any Extension Period,
(ii) the rate of interest (or the manner of calculation thereof) on such
Debentures, or (iii) the duration of the maximum consecutive period that
payments of interest on such Debentures may be deferred;
(d) change adversely to the Holders the redemption, conversion or
exchange provisions applicable to such Debentures, if any;
(e) change the currency in respect of which the payments on such
Debentures are to be made;
(f) make any change in Article 10 that adversely affects the
rights of the Holders of the Debentures or any change to any other Section
hereof that adversely affects their rights under Article 10; or
(g) change Section 6.07 or 6.08;
provided that, in the case of the outstanding Debentures of a series then held
by a Trust, no such amendment shall be made that adversely affects the holders
of the Preferred Securities of that Trust, and no waiver of any Event of
Default with respect to the Debentures of that series or compliance with any
covenant under this Indenture shall be effective, without the prior consent of
the holders of at least a majority of the aggregate liquidation amount of the
outstanding Preferred Securities of that Trust or the holder of each such
Preferred Security, as applicable.
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 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.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Debentures, or which modifies
the rights of the Holders of Debentures 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 Debentures of any other series.
It shall not be necessary for the consent of the Holders of Debentures
or holders of Preferred Securities under this Section to approve the particular
form of any proposed amendment, but it shall be sufficient if such consent
approves the substance thereof.
If certain Holders agree to defer or waive certain obligations of the
Company hereunder with respect to Debentures held by them, such deferral or
waiver shall not affect the rights of any other Holder to receive the payment
or performance required hereunder in a timely manner.
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After an amendment or waiver under this Section becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment or
waiver. Any failure of the Company to mail such notices, or any defect therein,
shall not, however, in any way impair or affect the validity of such amendment
or waiver.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article 9 shall
comply with the TIA.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment, waiver or other action by Holders becomes
effective, a consent, waiver or any other action by a Holder of a Debenture
hereunder is a continuing consent by the Holder and every subsequent Holder of
that Debenture or portion of the Debenture that evidences the same obligation
as the consenting Holder's Debenture, even if notation of the consent, waiver
or action is not made on such Debenture. However, any such Holder or subsequent
Holder may revoke the consent, waiver or action as to such Holder's Debenture
or portion of the Debenture if the Trustee receives the notice of revocation
before the consent of the requisite aggregate principal amount of such
Debentures then outstanding has been obtained and not revoked. After an
amendment, waiver or action becomes effective, it shall bind every Holder of
the Debentures of the related series, except as provided in Section 9.02.
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 amendment or
waiver. If a Record Date is fixed, then, notwithstanding the first two
sentences of the immediately preceding paragraph, only Holders of Debentures or
holders of Preferred Securities, as applicable, on such Record Date or their
duly designated proxies, and only those Persons, shall be entitled to consent
to such amendment, supplement or waiver or to revoke any consent previously
given, whether or not such Persons continue to be such after such Record Date.
No such consent shall be valid or effective for more than 90 days after such
Record Date.
SECTION 9.05 NOTATION ON OR EXCHANGE OF DEBENTURES.
Debentures of the related series authenticated and made available for
delivery after the execution of any supplemental indenture pursuant to this
Article 9 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 Debentures so modified to
conform, in the opinion of the Trustee and the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and made available for delivery by the Trustee in exchange for
outstanding Debentures.
SECTION 9.06 EXECUTION OF SUPPLEMENTAL INDENTURES.
The Trustee shall execute any supplemental indenture authorized
pursuant to this Article 9 if the supplemental indenture does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, execute it. In executing such supplemental
indenture, the Trustee shall be entitled to receive, and shall be fully
protected
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in relying upon, an Officer's Certificate and Opinion of Counsel stating that
such supplemental indenture is authorized or permitted by this Indenture.
SECTION 9.07 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article 9,
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 Debentures of the related series theretofore or thereafter authenticated and
made available for delivery hereunder shall be bound thereby.
ARTICLE 10
SUBORDINATION
SECTION 10.01 DEBENTURES SUBORDINATED TO SENIOR INDEBTEDNESS.
Notwithstanding the provisions of Section 6.11 or any other provision
herein or in any Debenture, the Company and the Trustee and, by their
acceptance thereof, the Holders of the Debentures (a) covenant and agree that
all payments by the Company of the principal of and premium, if any, and
interest on the Debentures (other than Debentures which have been discharged
pursuant to Article 8 or Debentures that provide for a sinking fund pursuant to
Article 11) shall be subordinated in accordance with the provisions of this
Article 10 to the prior payment in full, in cash or cash equivalents, of all
amounts payable on, under or in connection with Senior Indebtedness, and (b)
acknowledge that holders of Senior Indebtedness are or shall be relying on this
Article 10. Nothing herein or in any Debenture is intended to or shall limit
the amount of Senior Indebtedness the Company may incur.
SECTION 10.02 PRIORITY AND PAYMENT OF PROCEEDS IN CERTAIN EVENTS: REMEDIES
STANDSTILL.
(a) Upon any payment or distribution of assets or securities of
the Company, as the case may be, of any kind or character, whether in cash,
property or securities, upon any dissolution or winding up or total or partial
liquidation or reorganization of the Company, whether voluntary or involuntary,
or in bankruptcy, insolvency, receivership or other proceedings, all amounts
payable on, under or in connection with Senior Indebtedness (including any
interest accruing on such Senior Indebtedness subsequent to the commencement of
a bankruptcy, insolvency, receivership or similar proceeding) shall first be
paid in full in cash, or payment provided for in cash or cash equivalents,
before the Holders or the Trustee on behalf of the Holders or the holders of
Preferred Securities shall be entitled to receive from the Company any payment
of principal of or premium, if any, or interest on the Debentures or
distribution of any assets or securities.
(b) No direct or indirect payment by or on behalf of the Company
of principal of or premium, if any, or interest on the Debentures (other than
Debentures which have been discharged pursuant to Article 8 or Debentures that
provide for a sinking fund pursuant to Article 11), whether pursuant to the
terms of the Debentures or upon acceleration or otherwise, shall be made if, at
the time of such payment, there exists (i) a default in the payment of all or
any portion of any Senior Indebtedness and the Trustee has received written
notice thereof from the Company, from holders of Senior Indebtedness or from
any trustee, representative or agent therefor, or (ii) any other default
affecting Senior Indebtedness as a result of which the maturity
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of Senior Indebtedness has been accelerated and the Trustee has received
written notice from the Company, from holders of Senior Indebtedness or from
any trustee, representative or agent therefor, and such default shall not have
been cured or waived by or on behalf-of the holders of such Senior
Indebtedness.
(c) If, notwithstanding the foregoing provisions prohibiting such
payment or distribution, the Trustee or any Holder shall have received any
payment on account of the principal of or premium, if any, or interest on the
Debentures when such payment is prohibited by this Section and before all
amounts payable on, under or in connection with Senior Indebtedness are paid in
full in cash or cash equivalents, then and in such event (subject to the
provisions of Section 10.08) such payment or distribution shall be received and
held in trust for the holders of Senior Indebtedness and, at the written
direction of the trustee, representative or agent for the holders of the Senior
Indebtedness, shall be paid to the holders of the Senior Indebtedness remaining
unpaid to the extent necessary to pay such Senior Indebtedness in full in cash
or cash equivalents.
Upon any payment or distribution of assets or securities referred to
in this Article 10, the Trustee and the Holders shall be entitled to rely upon
any order or decree of a court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
and upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making any such payment or distribution,
delivered to the Trustee for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of Senior Indebtedness and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10.
SECTION 10.03 PAYMENTS WHICH MAY BE MADE PRIOR TO NOTICE.
Nothing in this Article 10 or elsewhere in this Indenture shall
prevent (a) the Company, except under the conditions described in Section
10.02, from making payments of principal of or premium, if any, or interest on
the Debentures or from depositing with the Trustee any monies for such
payments, or (b) the application by the Trustee of any monies deposited with it
for the purpose of making such payments of principal of or premium, if any, or
interest on the Debentures, to the Holders entitled thereto, unless at least
two Business Days prior to the date when such payment would otherwise (except
for the prohibitions contained in Section 10.02) become due and payable, the
Trustee shall have received the written notice provided for in Section
10.02(b)(i) or (ii).
SECTION 10.04 RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT TO BE IMPAIRED.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time or in any way be
prejudiced or impaired by any act or failure to act in good faith by any such
holder, or by any noncompliance by the Company with the terms and provisions
and covenants herein regardless of any knowledge thereof any such holder may
have or otherwise be charged with.
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The provisions of this Article 10 are intended to be for the benefit
of, and shall be enforceable directly by, the holders of Senior Indebtedness.
Notwithstanding anything to the contrary in this Article 10, to the extent any
Holders or the Trustee have paid over or delivered to any holder of Senior
Indebtedness any payment or distribution received on account of the principal
of or premium, if any, or interest on the Debentures to which any other holder
of Senior Indebtedness shall be entitled to share in accordance with Section
10.02, no holder of Senior Indebtedness shall have a claim or right against any
Holders or the Trustee with respect to any such payment or distribution or as a
result of the failure to make payments or distributions to such other holder of
Senior Indebtedness.
SECTION 10.05 TRUSTEE MAY TAKE ACTION TO EFFECTUATE SUBORDINATION.
Each Holder of a Debenture, by his acceptance thereof, authorizes and
directs the Trustee on his behalf to take such action as may be required by the
trustee, representative or agent for holders of Senior Indebtedness or by the
Company to effectuate, as between the holders of Senior Indebtedness and the
Holders, the subordination as provided in this Article 10 and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 10.06 SUBROGATION.
Upon the payment in full, in cash or cash equivalents, of all Senior
Indebtedness, any Holder shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments or distributions of assets of the
Company in respect of such Senior Indebtedness until the Debentures shall be
paid in full; and for the purposes of such subrogation, no payments or
distributions to holders of such Senior Indebtedness of any cash property or
securities to which such Holders of the Debentures would be entitled except for
this Article 10, and no payment pursuant to this Article 10 to holders of such
Senior Indebtedness by such Holders of the Debentures, shall, as between the
Company, its creditors other than holders of such Senior Indebtedness and such
Holders of the Debentures, be deemed to be a payment by the Company to or on
account of such Senior Indebtedness, it being understood that the provisions of
this Article 10 are solely for the purpose of defining the relative rights of
the holders of such Senior Indebtedness, on the one hand, and such Holders of
the Debentures, on the other hand.
If any payment or distribution to which Holders of Debentures would
otherwise have been entitled but for the provisions of this Article 10 shall
have been applied, pursuant to this Article 10, to the payment of all Senior
Indebtedness, then and in such case such Holders of the Debentures shall be
entitled to receive from the holders of such Senior Indebtedness at the time
outstanding any payments or distributions received by such holders of Senior
Indebtedness in excess of the amount sufficient to pay, in cash or cash
equivalents, all such Senior Indebtedness in full.
SECTION 10.07 OBLIGATIONS OF COMPANY UNCONDITIONAL; REINSTATEMENT.
Nothing in this Article 10 or elsewhere in this Indenture or in any
Debenture is intended to or shall impair, as between the Company and Holders of
the Debentures, the obligations of the Company, which are absolute and
unconditional, to pay to such Holders the principal of and premium, if any, and
interest on the Debentures as and when the same shall become due and
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payable in accordance with their terms, or is intended to or shall affect the
relative rights of such Holders of the Debentures and creditors of the Company
other than the holders of the Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or any Holder of Debentures or holder of Preferred
Securities, as applicable, from exercising all remedies otherwise permitted by
applicable law under this Indenture, subject to the rights, if any, under this
Article 10 of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
The failure to make a scheduled payment of principal of or premium, if
any, or interest on the Debentures by reason of Section 10.02 shall not be
construed as preventing the occurrence of a Default or an Event of Default
under Section 6.01; provided, however, that if (a) the conditions preventing
the making of such payment no longer exist, and (b) such Holders of the
Debentures are made whole with respect to such omitted payments, the Default or
Event of Default relating thereto (including any failure to pay any accelerated
amounts) shall be automatically waived, and the provisions of the Indenture
shall be reinstated as if no such Event of Default had occurred.
SECTION 10.08 TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN ABSENCE
OF NOTICE.
The Trustee or Paying Agent shall not be charged with the knowledge of
the existence of any default in the payment of all or a portion of any Senior
Indebtedness or any other default affecting Senior Indebtedness as a result of
which the maturity of the Senior Indebtedness has been accelerated, unless and
until the Trustee or Paying Agent shall have received written notice thereof
from the Company or one or more holders of Senior Indebtedness or from any
trustee, representative or agent therefor; and, prior to the receipt of any
such written notice, the Trustee or Paying Agent may conclusively assume that
no such facts exist.
Unless at least two Business Days prior to the date when by the terms
of this Indenture any monies are to be deposited by the Company with the
Trustee or any Paying Agent for any purpose (including, without limitation, the
payment of the principal of or premium, if any, or interest on any Debenture),
the Trustee or Paying Agent shall have received with respect to such monies the
notice provided for in Section 10.02, the Trustee or Paying Agent shall have
full power and authority to receive and apply such monies to the purpose for
which they were received. Neither of them shall be affected by any notice to
the contrary, which may be received by either on or after such second Business
Day. The foregoing shall not apply to the Paying Agent if the Company is acting
as Paying Agent. Nothing in this Section shall limit the right of the holders
of Senior Indebtedness to recover payments as contemplated by Section 10.02.
The Trustee or Paying Agent shall be entitled to rely on the delivery to it of
a written notice by a Person representing himself or itself to be a holder of
such Senior Indebtedness (or a trustee, representative or agent on behalf of
such holder) to establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee, representative or agent on behalf of any such
holder. The Trustee shall not be deemed to have any duty to the holders (and
shall be fully protected in relying upon such notice) of Senior Indebtedness.
SECTION 10.09 RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS.
The Trustee and any Paying Agent shall be entitled to all of the
rights set forth in this Article 10 in respect of any Senior Indebtedness at
any time held by them to the same extent as
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any other holder of such Senior Indebtedness, and nothing in this Indenture
shall be construed to deprive the Trustee or any Paying Agent of any of its
rights as such holder.
SECTION 10.10 NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Debentures. Failure to give such notice shall
not affect the subordination of the Debentures to Senior Indebtedness.
Notwithstanding the provisions of this or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee
in respect of the Debentures, unless and until the Trustee shall have received
written notice thereof at the address specified in Section 13.02 from the
Company or a holder of Senior Indebtedness or from any trustee or agent
therefor; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 7.01, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if a Responsible
Officer of the Trustee shall not have received, at least three Business Days
prior to the date upon which by the terms hereof any such money may become
payable for any purpose (including, without limitation, the payment of the
principal amount, issue price, accrued original issue discount, redemption
price, purchase price, change in control purchase price or interest, if any, as
the case may be, in respect of any Debenture), the notice with respect to such
money provided for in this Section 10.10, then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purpose for which such money
was received and shall not be affected by any notice to the contrary which may
be received by it within three Business Days prior to such date.
Subject to the provisions of Section 7.01, the Trustee shall be
entitled to conclusively rely on the delivery to it of a written notice by a
Person representing himself or itself to be a holder of Senior Indebtedness (or
a trustee or agent on behalf of such holder) to establish that such notice has
been given by a holder of Senior Indebtedness (or a trustee or agent on behalf
of any such holder). In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment which it may be required to
make for the benefit of such Person pursuant to the terms of this Indenture
pending judicial determination as to the rights of such Person to receive such
payment.
SECTION 10.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 7.01, and
the Holders of the Debentures shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating
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trustee, Custodian, receiver, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or
to the Holders of Debentures, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed theron and all other
facts pertinent thereto or to this Article.
SECTION 10.12 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, except to the extent the Trustee is the trustee
under the indenture governing such Senior Indebtedness, and shall not be liable
to any such holders if the Trustee shall in good faith mistakenly pay over or
distribute to Holders of Debentures or to the Company or to any other Person
cash, property or securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise. With respect to the holders
of Senior Indebtedness, the Trustee undertakes to perform or to observe only
such of its covenants or obligations as are specifically set forth in this
Article and no implied covenants or obligations with respect to holders of
Senior Indebtedness shall be read into this Indenture against the Trustee.
Nothing in this Article shall apply to claims of or payments to, the
Trustee under or pursuant to Section 7.07.
ARTICLE 11
SINKING FUNDS
SECTION 11.01 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debentures of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Debenture of such series
issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Debentures 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 Debentures of such series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Debentures of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 11.02. Each sinking fund payment shall be applied to the
redemption of Debentures of any series as provided for by the terms of
Debentures of such series and this Indenture.
SECTION 11.02 SATISFACTION OF SINKING FUND PAYMENTS WITH DEBENTURES.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Debentures of any series to be made pursuant
to the terms of such Debentures (a) deliver outstanding Debentures of such
series (other than any of such Debentures previously called for redemption or
any of such Debentures in respect of which cash shall have been released to the
Company), and (b) apply as a credit Debentures of such series which have been
redeemed either at the election of the Company pursuant to the terms of such
series of
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Debentures or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debentures, provided that such series of
Debentures have not been previously so credited. Such Debentures shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debentures 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 Debentures of any series in lieu of
cash payments pursuant to this Section, the principal amount of Debentures of
such series to be redeemed in order to exhaust the aforesaid cash payment shall
be less than $100,000, the Trustee need not call Debentures of such series for
redemption, except upon a Company Order, and such cash payment shall be held by
the Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment on Debentures of such series, 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 Debentures
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 11.03 REDEMPTION OF DEBENTURES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Debentures, the Company shall deliver to the Trustee an Officer's
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
Debentures of that series pursuant to Section 11.02, 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 Debentures to be so credited and not
theretofore delivered. If such Officer's Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Debentures to be redeemed upon such sinking fund payment date
in the manner specified in TIA Section 302 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 TIA Section 303. Such notice having been duly given, the
redemption of such Debentures shall be made upon the terms and in the manner
stated in TIA Sections 304 and 306.
ARTICLE 12
MEETINGS OF DEBENTUREHOLDERS
SECTION 12.01 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Debentures of any series may be called at any
time and from time to time pursuant to this Article 12 to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Debentures of such series.
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SECTION 12.02 CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Debentures of any series for any purpose specified in Section 12.01, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in such other place as the Trustee shall determine. Notice of every
meeting of Holders of Debentures 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 13.02, not less
than 20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, by or pursuant to a Board
Resolution, or the Holders of at least 25% in principal amount of the
outstanding Debentures of any series shall have requested the Trustee to call a
meeting of the Holders of Debentures of such series for any purpose specified
in Section 12.01, 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 such meeting within 20 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Debentures of such series in the
amount above specified, as the case may be, may determine the time and the
place for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in clause (a) of this Section.
SECTION 12.03 PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Debentures of any
series, a Person shall be (a) a Holder of one or more outstanding Debentures of
such series, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more outstanding Debentures 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 Debentures of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 12.04 QUORUM; ACTION.
The Persons entitled to vote at least a majority in principal amount
of the outstanding Debentures of a series shall constitute a quorum for a
meeting of Holders of Debentures of such series; provided, however, that if any
action is to be taken at such meeting with respect to a consent or waiver which
this Indenture expressly provides may be given by the Holders of at least
66-2/3% in principal amount of the outstanding Debentures of a series, the
Persons entitled to vote such percentage in principal amount of the outstanding
Debentures of such series shall constitute a quorum. 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 Debentures 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 such adjourned
meeting, such adjourned 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 adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 12.02(a), except that
such notice need
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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 Debentures of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 9.02, 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 at least a majority in principal amount of the outstanding
Debentures of that series; provided, however, that, except as limited by the
proviso to Section 9.02, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture or any supplemental indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of the
outstanding Debentures 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 Debentures of such series.
Any resolution passed or decision taken at any meeting of Holders of
Debentures of any series duly held in accordance with this Section shall be
binding on all the Holders of Debentures of such series, whether or not such
Holders were present or represented at the meeting.
SECTION 12.05 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) 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 Debentures of a series in regard to proof of the holding
of Debentures 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 deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Debentures shall be proved in the manner specified in Section
1.05 and the appointment of any proxy shall be proved in the manner specified
in Section 1.05. 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 1.05 or other proof.
(b) 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 Debentures as provided in Section 12.02(b), in
which case the Company or the Holders of Debentures 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 at least a majority in principal amount
of the outstanding Debentures of such series represented at the meeting.
(c) At any meeting each Holder of a Debenture of such series or
proxy shall be entitled to one vote for each $[______] principal amount of the
outstanding Debentures 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
Debenture challenged as not outstanding and ruled by the chairman of
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the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Debenture of such series or proxy.
(d) Any meeting of Holders of Debentures of any series duly called
pursuant to Section 12.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote at least a majority in principal
amount of the outstanding Debentures of such series represented at the meeting;
and the meeting may be held as so adjourned without further notice.
SECTION 12.06 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Debentures of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Debentures of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the outstanding Debentures 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 duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Debentures 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 12.02 and, if
applicable, Section 12.04. 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 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 13
MISCELLANEOUS
SECTION 13.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by operation of Section 318(c) of the TIA, the imposed
duties shall control. The provisions of Sections 310 to 317, inclusive, of the
TIA that impose duties on any Person (including provisions automatically deemed
included in an indenture unless the indenture provides that such provisions are
excluded) are a part of and govern this Indenture, except as, and to the
extent, they are, expressly excluded from this Indenture, as permitted by the
TIA.
SECTION 13.02 NOTICES.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing and delivered, telecopied (with originals
to follow by first-class mail) or mailed by first-class mail, postage prepaid,
addressed as follows:
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if to the Company:
Cox Radio, Inc.
1400 Lake Hearn Drive
Atlanta, Georgia 30319
Facsimile No.: (404) 843-5142
Attention: Richard Jacobson
with a copy to:
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, NW
Suite 800
Washington, D.C. 20036
Facsimile No.: (202) 776-2222
Attention: Stuart A. Sheldon
if to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Facsimile No.: (212) 815-5915
Attention: Corporate Trust Administration
The Company or the Trustee, by giving notice to the other, may
designate additional or different addresses for subsequent notices of
communications. The Company shall notify the holder, if any, of Senior
Indebtedness of any such additional or different addresses of which the Company
receives notice from the Trustee.
Any notice or communication given to a Debentureholder shall be mailed
or delivered to the Debentureholder at the Debentureholder's address as it
appears on the Register of the Registrar and shall be sufficiently given if
mailed within the time prescribed.
Failure to give a notice or communication to a Debentureholder or any
defect in it shall not affect its sufficiency with respect to other
Debentureholders. If a notice or communication is given in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company gives a notice or communication to the
Debentureholders, it shall deliver a copy to the Trustee and each Registrar,
Paying Agent or co-Registrar.
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 Debentureholders 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.
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SECTION 13.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Debentureholders may communicate pursuant to Section 312(b) of the TIA
with other Debentureholders with respect to their rights under this Indenture
or the Debentures. The Company, the Trustee, the Registrar, the Paying Agent
and anyone else shall have the protection of Section 312(c) of the TIA.
SECTION 13.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officer's Certificate (complying with Section 13.05)
stating that, in the opinion of such Officer, all conditions precedent to the
taking of such action have been complied with; and
(b) if applicable, an Opinion of Counsel (complying with Section
13.05) stating that, in the opinion of such counsel all such conditions
precedent to the taking of such action have been complied with.
SECTION 13.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officer's Certificate and Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:
(a) a statement that each Person making such Officer's Certificate
or Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such Officer's Certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to enable
such Person to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement that, in the opinion of such Person, such covenant
or condition has been complied with; provided, however, that with respect to
matters of fact not involving any legal conclusion, an Opinion of Counsel may
rely on an Officer's Certificate or certificates of public officials.
SECTION 13.06 SEVERABILITY CLAUSE.
If any provision in this Indenture or in the Debentures 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 13.07 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR.
The Trustee may make reasonable rules for action by or a meeting of
Debentureholders. The Registrar and Paying Agent may make reasonable rules for
their functions.
SECTION 13.08 LEGAL HOLIDAYS.
A "Legal Holiday" is any day other than a Business Day. If any
specified date (including a date for giving notice) is a Legal Holiday, the
action to be taken on such date shall be taken on the next succeeding day that
is not a Legal Holiday, and if such action is a payment in respect of the
Debentures, unless otherwise specified pursuant to Section 2.01 no principal,
premium, if any, or interest shall accrue in respect of such payment for the
intervening period.
SECTION 13.09 GOVERNING LAW.
This Indenture and the Debentures shall be governed by and construed
in accordance with the laws of the State of New York, without regard to its
principles of conflicts of laws.
SECTION 13.10 NO RECOURSE AGAINST OTHERS.
No director, officer, employee or stockholder, as such, of the Company
shall have any liability for any obligations of the Company under the
Debentures or this Indenture or for any claim based on, in respect of or by
reason of such obligations. By accepting a Debenture, each Debentureholder
shall waive and release all such liability. The waiver and release shall be
part of the consideration for the issuance and sale of the Debentures.
SECTION 13.11 SUCCESSORS AND ASSIGNS.
All agreements of the Company in this Indenture and Debentures shall
bind its successors and assigns. All agreements of the Trustee in this
Indenture shall bind its successors and assigns.
SECTION 13.12 COUNTERPARTS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. Any signed copy shall be sufficient proof of this Indenture.
SECTION 13.13 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 13.14 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
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SECTION 13.15 HOLDERS OF PREFERRED SECURITIES AS THIRD PARTY BENEFICIARIES.
The Company hereby acknowledges that, to the extent specifically set
forth herein, prior to a Security Exchange with respect to the Debentures of
any series held as assets of a Trust, the holders of the Preferred Securities
of such Trust shall expressly be third party beneficiaries of this Indenture.
The Company further acknowledges that, prior to a Security Exchange with
respect to Debentures of any series held as assets of a Trust, if an Event of
Default has occurred and is continuing and is attributable to (i) the failure
of the Company to pay the principal of or premium, if any, or interest on the
Debentures or (ii) the failure by the Company to deliver the required
securities or other rights upon an appropriate conversion or exchange right
election, any holder of the Preferred Securities of such Trust may institute a
Direct Action against the Company.
SECTION 13.16 BENEFITS OF THE INDENTURE.
Except as otherwise expressly provided herein with respect to holders
of Senior Indebtedness and holders of Preferred Securities, nothing in this
Indenture or in the Debentures, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders of
the Debentures, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
[remainder of page intentionally left blank]
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SIGNATURES
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
COX RADIO, INC.
By:
------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
AS TRUSTEE
By:
------------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 4.4
CERTIFICATE OF TRUST
OF
COX RADIO TRUST I
THIS CERTIFICATE OF TRUST of Cox Radio Trust I (the "Trust"), dated as
of November 2, 1999, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. ss. 3801, et seq.) (the "Act").
(i) Name. The name of the business trust being formed hereby is Cox
Radio Trust I.
(ii) Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, Delaware 19711, Attention: Corporate Trust
Administration.
(iii) Effective Date. This Certificate of Trust shall be effective as
of its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have duly executed this Certificate of Trust in accordance with Section
3811(a)(1) of the Act as of the date first above written.
THE BANK OF NEW YORK, as trustee
By: /s/ Marie E. Trimboli
-------------------------------------
Name: Marie E. Trimboli
Title: Assistant Treasurer
THE BANK OF NEW YORK (DELAWARE), as trustee
By: /s/ Frederick W. Clark
-------------------------------------
Name: Frederick W. Clark
Title: Authorized Signatory
<PAGE> 1
EXHIBIT 4.5
DECLARATION OF TRUST
OF
COX RADIO TRUST I
THIS DECLARATION OF TRUST is made as of November 2, 1999 (this
"Declaration of Trust"), by and among Cox Radio, Inc., a Delaware corporation,
as sponsor (the "Sponsor"), The Bank of New York, as trustee (the "Property
Trustee"), and The Bank of New York (Delaware), as trustee (the "Delaware
Trustee") (the Property Trustee and the Delaware Trustee being hereinafter
jointly referred to as the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as Cox Radio Trust I (the
"Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss. 3801, et seq. (the "Business Trust Act"), and
that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate
of trust with the Delaware Secretary of State in accordance with the provisions
of the Business Trust Act.
3. An amended and restated Declaration of Trust satisfactory to each
party to it, in such form as the parties thereto may approve, will be entered
into to provide for the contemplated operation of the Trust created hereby and
the issuance of the Preferred or Capital Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the Trustees may
take all actions deemed proper as are necessary to effect the transactions
contemplated herein.
4. The Sponsor, as sponsor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (as herein defined), on behalf of
the Trust, (a) a Registration Statement (the "1933 Act Registration
Statement"), including all pre-effective and post-effective amendments thereto,
relating to the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of the Preferred or Capital Securities of the Trust, (b) any
preliminary prospectus or prospectus or supplement thereto relating to the
Preferred or Capital Securities of the Trust required to be filed pursuant to
the 1933 Act, and (c) a Registration Statement on Form 8-A or other appropriate
form (the "1934 Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the
Preferred or Capital Securities of the Trust under the Securities Exchange Act
of 1934, as amended; (ii) if and at such time as determined by the Sponsor, to
file with the New York Stock Exchange or other exchange, or the National
Association of Securities Dealers ("NASD"), and execute on behalf of the Trust
a listing
<PAGE> 2
application and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the Preferred
or Capital Securities of the Trust to be listed on the New York Stock Exchange
or such other exchange, or the NASD's Nasdaq National Market; (iii) to file and
execute on behalf of the Trust, such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents that shall be necessary or desirable to register the
Preferred or Capital Securities of the Trust under the securities or "Blue Sky"
laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem
necessary or desirable; (iv) to execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the Preferred or Capital
Securities of the Trust; and (v) to execute, deliver and perform on behalf of
the Trust an underwriting agreement with one or more underwriters relating to
the offering of the Preferred or Capital Securities of the Trust.
In the event that any filing referred to in this Section 4 is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, NASD, or state securities or "Blue Sky" laws to be
executed on behalf of the Trust by the Trustees, the Trustees, in their
capacity as trustees of the Trust, are hereby authorized to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing, it
being understood that the Trustees, in their capacity as trustees of the Trust,
shall not be required to join in any such filing or execute on behalf of the
Trust any such document unless required by the rules and regulations of the
Commission, the New York Stock Exchange or other exchange, NASD, or state
securities or "Blue Sky" laws.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of trustees of the Trust initially shall be two and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Sponsor.
7. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
8. The Sponsor hereby agrees to indemnify the Trustees and any of the
officers, directors, employees and agents of the Trustees (the "Indemnified
Persons") for, and to hold each Indemnified Person harmless against, any
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
-2-
<PAGE> 3
[SIGNATURE PAGE FOLLOWS]
-3-
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
COX RADIO, INC.,
as Sponsor
By: /s/ Andrew A. Merdek
---------------------------------
Name: Andrew A. Merdek
Title: Secretary
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Marie E. Trimboli
---------------------------------
Name: Marie E. Trimboli
Title: Assistant Treasurer
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Fredrick W. Clark
---------------------------------
Name: Fredrick W. Clark
Title: Authorized Signatory
-4-
<PAGE> 1
EXHIBIT 4.6
CERTIFICATE OF TRUST
OF
COX RADIO TRUST II
THIS CERTIFICATE OF TRUST of Cox Radio Trust II (the "Trust"), dated
as of November 2, 1999, is being duly executed and filed by the undersigned,
as trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. ss. 3801, et seq.) (the "Act").
(i) Name. The name of the business trust being formed hereby is Cox
Radio Trust II.
(ii) Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, Delaware 19711, Attention: Corporate Trust
Administration.
(iii) Effective Date. This Certificate of Trust shall be effective as
of its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have duly executed this Certificate of Trust in accordance with Section
3811(a)(1) of the Act as of the date first above written.
THE BANK OF NEW YORK, as trustee
By: /s/ Marie E. Trimboli
-------------------------------------
Name: Marie E. Trimboli
Title: Assistant Treasurer
THE BANK OF NEW YORK (DELAWARE), as trustee
By: /s/ Frederick W. Clark
-------------------------------------
Name: Frederick W. Clark
Title: Authorized Signatory
<PAGE> 1
EXHIBIT 4.7
DECLARATION OF TRUST
OF
COX RADIO TRUST II
THIS DECLARATION OF TRUST is made as of November 2, 1999 (this
"Declaration of Trust"), by and among Cox Radio, Inc., a Delaware corporation,
as sponsor (the "Sponsor"), The Bank of New York, as trustee (the "Property
Trustee"), and The Bank of New York (Delaware), as trustee (the "Delaware
Trustee") (the Property Trustee and the Delaware Trustee being hereinafter
jointly referred to as the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as Cox Radio Trust II (the
"Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss. 3801, et seq. (the "Business Trust Act"), and
that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate
of trust with the Delaware Secretary of State in accordance with the provisions
of the Business Trust Act.
3. An amended and restated Declaration of Trust satisfactory to each
party to it, in such form as the parties thereto may approve, will be entered
into to provide for the contemplated operation of the Trust created hereby and
the issuance of the Preferred or Capital Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the Trustees may
take all actions deemed proper as are necessary to effect the transactions
contemplated herein.
4. The Sponsor, as sponsor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (as herein defined), on behalf of
the Trust, (a) a Registration Statement (the "1933 Act Registration
Statement"), including all pre-effective and post-effective amendments thereto,
relating to the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of the Preferred or Capital Securities of the Trust, (b) any
preliminary prospectus or prospectus or supplement thereto relating to the
Preferred or Capital Securities of the Trust required to be filed pursuant to
the 1933 Act, and (c) a Registration Statement on Form 8-A or other appropriate
form (the "1934 Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the
Preferred or Capital Securities of the Trust under the Securities Exchange Act
of 1934, as amended; (ii) if and at such time as determined by the Sponsor, to
file with the New York Stock Exchange or other exchange, or the National
<PAGE> 2
Association of Securities Dealers ("NASD"), and execute on behalf of the Trust
a listing application and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause
the Preferred or Capital Securities of the Trust to be listed on the New York
Stock Exchange or such other exchange, or the NASD's Nasdaq National Market;
(iii) to file and execute on behalf of the Trust, such applications, reports,
surety bonds, irrevocable consents, appointments of attorney for service of
process and other papers and documents that shall be necessary or desirable to
register the Preferred or Capital Securities of the Trust under the securities
or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of the
Trust, may deem necessary or desirable; (iv) to execute and deliver letters or
documents to, or instruments for filing with, a depository relating to the
Preferred or Capital Securities of the Trust; and (v) to execute, deliver and
perform on behalf of the Trust an underwriting agreement with one or more
underwriters relating to the offering of the Preferred or Capital Securities of
the Trust.
In the event that any filing referred to in this Section 4 is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, NASD, or state securities or "Blue Sky" laws to be
executed on behalf of the Trust by the Trustees, the Trustees, in their
capacity as trustees of the Trust, are hereby authorized to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing, it
being understood that the Trustees, in their capacity as trustees of the Trust,
shall not be required to join in any such filing or execute on behalf of the
Trust any such document unless required by the rules and regulations of the
Commission, the New York Stock Exchange or other exchange, NASD, or state
securities or "Blue Sky" laws.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of trustees of the Trust initially shall be two
and thereafter the number of trustees of the Trust shall be such number as
shall be fixed from time to time by a written instrument signed by the Sponsor
which may increase or decrease the number of trustees of the Trust; provided,
however, that to the extent required by the Business Trust Act, one trustee of
the Trust shall either be a natural person who is a resident of the State of
Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware. Subject to the foregoing, the Sponsor is
entitled to appoint or remove without cause any trustee of the Trust at any
time. Any trustee of the Trust may resign upon thirty days' prior notice to the
Sponsor.
7. This Declaration of Trust shall be governed by, and construed
in accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles).
8. The Sponsor hereby agrees to indemnify the Trustees and any
of the officers, directors, employees and agents of the Trustees (the
"Indemnified Persons") for, and to hold each Indemnified Person harmless
against, any liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
-2-
<PAGE> 3
[SIGNATURE PAGE FOLLOWS]
-3-
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
COX RADIO, INC.,
as Sponsor
By: /s/ Andrew A. Merdek
---------------------------------
Name: Andrew A. Merdek
Title: Secretary
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Marie E. Trimboli
---------------------------------
Name: Marie E. Trimboli
Title: Assistant Treasurer
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Frederick W. Clark
---------------------------------
Name: Frederick W. Clark
Title: Authorized Signatory
-4-
<PAGE> 1
EXHIBIT 4.8
================================================================================
AMENDED AND RESTATED TRUST AGREEMENT
COX RADIO TRUST [____]
Dated as of ____________ ___, ______
================================================================================
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I
INTERPRETATION AND DEFINITIONS
<TABLE>
<S> <C> <C>
SECTION 1.1 Definitions......................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.................................8
SECTION 2.2 Lists of Holders of Securities...................................9
SECTION 2.3 Reports by the Property Trustee..................................9
SECTION 2.4 Periodic Reports to Property Trustee.............................9
SECTION 2.5 Evidence of Compliance with Conditions Precedent.................9
SECTION 2.6 Events of Default; Waiver.......................................10
SECTION 2.7 Event of Default; Notice........................................11
ARTICLE III
ORGANIZATION
SECTION 3.1 Name............................................................12
SECTION 3.2 Office..........................................................12
SECTION 3.3 Purpose.........................................................12
SECTION 3.4 Authority.......................................................12
SECTION 3.5 Title to Property of the Trust..................................13
SECTION 3.6 Powers and Duties of the Administrative Trustees................13
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees............15
SECTION 3.8 Powers and Duties of the Property Trustee.......................16
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.....19
SECTION 3.10 Certain Rights of Property Trustee..............................20
SECTION 3.11 Delaware Trustee................................................22
SECTION 3.12 Execution of Documents..........................................23
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities..........23
SECTION 3.14 Duration of Trust...............................................23
SECTION 3.15 Mergers.........................................................23
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.........................25
SECTION 4.2 Responsibilities of the Sponsor.................................26
SECTION 4.3 Right to Proceed................................................26
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
ARTICLE V
TRUSTEES
<S> <C> <C>
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee...................26
SECTION 5.2 Delaware Trustee................................................27
SECTION 5.3 Property Trustee; Eligibility...................................27
SECTION 5.4 Certain Qualifications of Administrative Trustees and
Delaware Trustee Generally......................................28
SECTION 5.5 Administrative Trustees.........................................28
SECTION 5.6 Delaware Trustee................................................29
SECTION 5.7 Appointment, Removal and Resignation of Trustees................29
SECTION 5.8 Vacancies among Trustees........................................31
SECTION 5.9 Effect of Vacancies.............................................31
SECTION 5.10 Meetings........................................................31
SECTION 5.11 Delegation of Power.............................................32
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business.....32
SECTION 5.13 Compensation....................................................32
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions...................................................33
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.........................33
SECTION 7.2 Execution and Authentication....................................33
SECTION 7.3 Form and Dating.................................................34
SECTION 7.4 Registrar and Paying Agent......................................35
SECTION 7.5 Paying Agent to Hold Money in Trust.............................36
SECTION 7.6 Replacement Securities..........................................36
SECTION 7.7 Outstanding Preferred Securities................................37
SECTION 7.8 Preferred Securities in Treasury................................37
SECTION 7.9 Temporary Securities............................................37
SECTION 7.10 Cancellation....................................................37
SECTION 7.11 CUSIP Numbers...................................................38
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust............................................38
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities..........................................39
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 9.2 Transfer Procedures and Restrictions............................39
SECTION 9.3 Deemed Security Holders.........................................42
SECTION 9.4 Book Entry Interests............................................43
SECTION 9.5 Notices to Clearing Agency......................................43
SECTION 9.6 Appointment of Successor Clearing Agency........................43
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
SECTION 10.1 Liability.......................................................44
SECTION 10.2 Exculpation.....................................................44
SECTION 10.3 Fiduciary Duty..................................................44
SECTION 10.4 Indemnification.................................................45
SECTION 10.5 Outside Businesses..............................................48
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.....................................................48
SECTION 11.2 Certain Accounting Matters......................................49
SECTION 11.3 Banking.........................................................49
SECTION 11.4 Withholding.....................................................49
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments......................................................50
SECTION 12.2 Meetings of the Holders of Securities;
Action by Written Consent.......................................52
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee..............53
SECTION 13.2 Representations and Warranties of Delaware Trustee..............54
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.........................................................55
SECTION 14.2 Governing Law...................................................56
SECTION 14.3 Intention of the Parties........................................56
SECTION 14.4 Headings........................................................57
SECTION 14.5 Successors and Assigns..........................................57
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 14.6 Partial Enforceability..........................................57
SECTION 14.7 Counterparts....................................................57
Term of Preferred Securities and Common Securities..............................I-1
EXHIBIT A-1 Form of Preferred Security Certificate........................A1-1
EXHIBIT A-2 Form of Common Security Certificate...........................A2-1
EXHIBIT B Specimen Debenture.............................................B-1
EXHIBIT C Underwriting Agreement.........................................C-1
</TABLE>
iv
<PAGE> 6
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Agreement
------------------- ---------
<S> <C>
310(a)................................................................. 5.3(a)
310(b)................................................................. 5.3(c)
310(c)................................................................. Inapplicable
311(a) and (b)......................................................... 5.3(c)
311(c)................................................................. Inapplicable
312(a)................................................................. 2.2(a)
312(b)................................................................. 2.2(b)
313.................................................................... 2.3
314(a)................................................................. 2.4
314(b)................................................................. Inapplicable
314(c)................................................................. 2.5
314(d)................................................................. Inapplicable
314(e)................................................................. 1.1, 2.5
314(f)................................................................. Inapplicable
315(a)................................................................. 3.9(b)
315(b)................................................................. 2.7(a)
315(c)................................................................. 3.9(a)
315(d)................................................................. 3.9(b)
316(a) and (b)......................................................... 2.6 and
Annex I
316(c)................................................................. 3.6(f)
317(a)................................................................. 3.8(h)
317(b)................................................................. 3.8(i)
</TABLE>
---------------
*This Cross-Reference Table does not constitute part of the Agreement
and shall not affect the interpretation of any of its terms or
provisions.
v
<PAGE> 7
AMENDED AND RESTATED
TRUST AGREEMENT
OF
COX RADIO TRUST [____]
AMENDED AND RESTATED TRUST AGREEMENT (the "Agreement") dated
and effective as of ____________ ___, ______ by the Trustees (as defined
herein), the Sponsor (as defined herein) and by the holders, from time to time,
of undivided beneficial interests in the assets of the Trust (as defined herein)
to be issued pursuant to this Agreement;
WHEREAS, certain of the Trustees and the Sponsor established
Cox Radio Trust [____] (the "Trust"), a trust created under the Business Trust
Act (as defined herein) pursuant to a Declaration of Trust dated as of
____________ ___, ______ (the "Original Declaration"), and a Certificate of
Trust filed with the Secretary of State of the State of Delaware on ____________
___, ______, for the sole purpose of issuing and selling certain securities
representing undivided beneficial interests in the assets of the Trust and
investing the proceeds thereof in certain Debentures of the Debenture Issuer
(each as hereinafter defined) and engaging in only those activities necessary,
advisable or incidental thereto;
WHEREAS, the parties hereto desire to amend and restate each
and every term and provision of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust continue as a business trust under the Business Trust Act, that
the Original Declaration be amended and restated in its entirety as provided
herein and that this Agreement constitute the governing instrument of such
business trust, the Trustees declare that all assets contributed to the Trust
will be held in trust for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the assets of the
Trust issued hereunder, subject to the provisions of this Agreement and, in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties, intending to be legally bound hereby, agree as follows:
<PAGE> 8
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Agreement but not
defined in the preamble above or elsewhere herein have the respective
meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Agreement has the
same meaning throughout;
(c) all references to "the Agreement" or "this Agreement"
are to this Agreement and each Annex and Exhibit hereto, as modified,
supplemented or amended from time to time;
(d) all references in this Agreement to Articles and
Sections and Annexes and Exhibits are to Articles and Sections of and
Annexes and Exhibits to this Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act (as
defined herein) has the same meaning when used in this Agreement unless
otherwise defined in this Agreement or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and
vice versa.
"Administrative Trustee" has the meaning set forth in Section
5.1.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent or Registrar.
"Agreement" means this Amended and Restated Trust Agreement,
dated as of ____________ ___, ______, including Annex I and all the exhibits
hereto.
"Authorized Officer" of a Person means any other Person that
is authorized to legally bind such former Person.
"Book Entry Interest" means a beneficial interest in a Global
Preferred Security Certificate registered in the name of a Clearing Agency or
its nominee, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.4.
2
<PAGE> 9
"Business Day" means any day other than a Saturday, Sunday or
other day on which banking institutions in The City of New York are authorized
or required by law, regulation or executive order to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss.3801 et seq., as it may be amended from time to
time, or any successor legislation.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Preferred Securities and in whose name or in the name of a
nominee of that organization shall be registered a global certificate and which
shall undertake to effect book-entry transfers and pledges of the Preferred
Securities.
"Closing Time" means the Closing Time as defined in the
Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation.
"Commission" means the United States Securities and Exchange
Commission as from time to time constituted, or if at any time after the
execution of this Agreement such Commission is not existing and performing the
duties now assigned to it under applicable federal securities laws, then the
body performing such duties at such time.
"Common Securities" has the meaning specified in Section
7.1(a).
"Common Securities Guarantee" means the Common Securities
Guarantee Agreement, dated as of ____________ ___, ______ of the Sponsor in
respect of the Common Securities.
"Company Indemnified Person" means (a) any Administrative
Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers,
directors, shareholders, members, partners, employees, representatives or agents
of any Administrative Trustee or any Affiliate of any Administrative Trustee; or
(d) any officer, employee or agent of the Trust or its Affiliates; provided that
the term "Company Indemnified Person" shall not include any Fiduciary
Indemnified Person.
"Corporate Trust Office" means the office of the Property
Trustee for the conduct of corporate trust business at which matters related to
this Agreement shall, at any particular time, be principally administered, which
office at the date of execution of this Agreement is located at 101 Barclay
Street, Floor 21 West, New York, New York 10286, Attention: Corporate Trust
Administration.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the Trust
or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
3
<PAGE> 10
"Debenture Issuer" means Cox Radio, Inc., a Delaware
corporation, or any successor entity resulting from any consolidation,
amalgamation, merger or other business combination, in its capacity as issuer of
the Debentures under the Indenture.
"Debentures" means the _____% Junior Subordinated Deferrable
Interest Debentures due ________ of the Debenture Issuer issued pursuant to the
Indenture.
"Debenture Trustee" means The Bank of New York, a New York
banking corporation, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Default" means an event, act or condition that with notice of
lapse of time, or both, would constitute an Event of Default.
"Definitive Preferred Securities" has the meaning set forth
in Section 7.3(a).
"Delaware Trustee" has the meaning set forth in Section 5.1.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Corporation, the initial
Clearing Agency.
"Event of Default" means, with respect to the Securities, an
Event of Default (as defined in the Indenture) that has occurred and is
continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
"Global Preferred Security" has the meaning set forth in
Section 7.3(a).
"Holder" means a Person in whose name a Security or Successor
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Junior Subordinated Debentures Indenture
dated as of ____________ ___, ______, between the Debenture Issuer and the
Debenture Trustee relating to the Debenture Issuer's junior subordinated
debentures as amended or supplemented from time to time.
4
<PAGE> 11
"Investment Company" means an investment company as defined
in the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Investment Company Event" means that the Trust has received
an opinion of counsel experienced in such matters to the effect that, as a
result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" under the Investment Company Act that is required to be registered
under this law, which change becomes effective on or after the date of this
Agreement.
"Legal Action" has the meaning set forth in Section 3.6(h).
"Like Amount" has the meaning set forth in Section 3 of Annex
I hereto.
"Liquidation Amount" has the meaning set forth in Section 2 of
Annex I hereto.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in Liquidation Amount" means, with respect to the
Securities, except as provided in the terms of the Preferred Securities or by
the Trust Indenture Act, Holders of outstanding Securities voting together as a
single class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate Liquidation
Amount (including the amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the Chief Financial Officer,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary. Any Officers' Certificate delivered by
the Trust shall be signed by at least one Administrative Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
5
<PAGE> 12
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Option Closing Date" means the date of closing of any sale of
Option Preferred Securities (as defined in the Underwriting Agreement) or, if
such term is not defined in the Underwriting Agreement, the date of closing of
any sale of securities to the underwriters named in such Underwriting Agreement
solely to cover over-allotments.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of the Sponsor, and who shall be reasonably acceptable to the
Property Trustee, provided, that the General Counsel or Assistant General
Counsel of the Sponsor shall be deemed to be reasonably acceptable to the
Trustee.
"Participants" has the meaning specified in Section 7.3(a).
"Paying Agent" has the meaning specified in Section 7.4.
"Payment Amount" has the meaning specified in Section 6.1.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" has the meaning specified in Section
7.1(a).
"Preferred Securities Guarantee" means the Preferred
Securities Guarantee Agreement dated as of ____________ ___, ______ of the
Sponsor in respect of the Preferred Securities.
"Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Property Trustee" has the meaning set forth in Section
5.3(a).
"Property Trustee Account" has the meaning set forth in
Section 3.8(c).
"Quorum" means a majority of the Administrative Trustees or,
if there are only two Administrative Trustees, both of them.
"Registrar" has the meaning set forth in Section 7.4.
"Related Party" means, with respect to the Sponsor, any direct
or indirect wholly owned subsidiary of the Sponsor or any other Person that
owns, directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
6
<PAGE> 13
"Responsible Officer" means, with respect to the Property
Trustee, any officer within the Corporate Trust Office of the Property Trustee
with direct responsibility for the administration of this Agreement, including
any vice-president, any assistant vice-president, any assistant secretary, any
assistant treasurer or other officer of the Corporate Trust Office of the
Property 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 of the Property Trustee to
whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Securities" or "Trust Securities" means the Common Securities
and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee
and the Preferred Securities Guarantee.
"Special Event" means a Tax Event or an Investment Company
Event.
"Sponsor" means Cox Radio, Inc., a Delaware corporation, or
any successor entity resulting from any merger, consolidation, amalgamation or
other business combination or conversion, in its capacity as sponsor of the
Trust.
"Successor Delaware Trustee" has the meaning set forth in
Section 5.7(b)(ii).
"Successor Entity" has the meaning set forth in Section
3.15(b)(i).
"Successor Property Trustee" has the meaning set forth in
Section 3.8(f)(ii).
"Successor Securities" has the meaning set forth in Section
3.15(b)(i)(B).
"Super Majority" has the meaning set forth in Section
2.6(a)(ii).
"Tax Event" means the receipt by the Administrative Trustees
and the Debenture Issuer of an Opinion of Counsel from counsel experienced in
such matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or taxing authority
thereof or therein, or as a result of any official administrative pronouncement
or judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is announced
on or after the date of this Agreement, there is more than an insubstantial risk
that (i) the Trust is, or will be within 90 days of the date of such opinion,
subject to United States Federal income tax with respect to income received or
accrued on the Debentures, (ii) the interest payable by the Debenture Issuer on
the Debentures is not, or within 90 days of the date of such opinion will not
be, deductible by the Debenture Issuer, in whole or in part, for United States
Federal income tax purposes, or (iii) the Trust is, or will be within 90 days of
the date of such opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
7
<PAGE> 14
"10% in Liquidation Amount" means, with respect to the
Securities, except as provided in the terms of the Preferred Securities or by
the Trust Indenture Act, Holders of outstanding Securities voting together as a
single class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of 10% or more of the aggregate Liquidation
Amount (including the amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Agreement as a trustee, so long as such Person shall continue as Trustee of the
Trust in accordance with the terms hereof, and all other Persons who may from
time to time be duly appointed, qualified and serving as Trustees in accordance
with the provisions hereof, and references herein to a Trustee or the Trustees
shall refer to such Person or Persons solely in their capacity as trustees
hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.
"Underwriting Agreement" means the Underwriting Agreement for
the offering and sale of Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Agreement in order for this
Agreement to be qualified under the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Agreement
limits, qualifies or conflicts with the duties imposed by ss.ss. 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Agreement
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
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SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrative Trustees on behalf
of the Trust shall provide the Property Trustee, unless the Property Trustee is
Registrar for the Securities, (i) within 7 Business Days prior to payment of
Distributions, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Holders of the Securities ("List of
Holders") as of such record date, provided that neither the Sponsor nor the
Administrative Trustees on behalf of the Trust shall be obligated to provide
such List of Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Property Trustee by the Sponsor and the
Administrative Trustees on behalf of the Trust, and (ii) at any other time,
within 30 days of receipt by the Trust of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Property Trustee. The Property Trustee shall preserve, in as current a
form as is reasonably practicable, all information contained in Lists of Holders
given to it or which it receives in the capacity as Paying Agent (if acting in
such capacity), provided that the Property Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
ss.ss. 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after September 1 of each year, commencing
September 1, ____, the Property Trustee shall provide to the Holders of the
Preferred Securities such reports as are required by ss. 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by ss. 313 of the
Trust Indenture Act. The Property Trustee shall also comply with the
requirements of ss. 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Administrative Trustees on behalf
of the Trust shall provide to the Property Trustee such documents, reports and
information as are required by ss. 314 of the Trust Indenture Act (if any) and
the compliance certificate required by ss. 314 of the Trust Indenture Act in the
form, in the manner and at the times required by ss. 314 of the Trust Indenture
Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrative Trustees on behalf
of the Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent provided for in this Agreement that relate to any
of the matters set forth in ss. 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to ss.
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
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SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in Liquidation Amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default
under the Agreement shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
aggregate principal amount of the holders of the Debentures (a "Super Majority")
to be waived under the Indenture, the Event of Default under the Agreement may
only be waived by the vote of the Holders of at least the proportion in
aggregate Liquidation Amount of the Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of ss.
316(a)(1)(B) of the Trust Indenture Act and such ss. 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Agreement and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Agreement, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Agreement without any further act, vote, or
consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture (except where
the Holders of the Common Securities are deemed to have waived such
Event of Default under the Agreement as provided below in this Section
2.6(b)), the Event of Default under the Agreement shall also not be
waivable; or
(ii) requires the consent or vote of a Super Majority to
be waived, except where the Holders of the Common Securities are deemed
to have waived such Event of Default under the Agreement as provided
below in this Section 2.6(b), the Event of Default under the Agreement
may only be waived by the vote of the Holders of at least the
proportion in aggregate Liquidation Amount of the Common Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding;
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provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of ss.ss. 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
ss.ss. 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Agreement and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such waiver, any such default shall cease to exist and any Event of Default
with respect to the Common Securities arising therefrom shall be deemed to have
been cured for every purpose of this Agreement, but no such waiver shall extend
to any subsequent or other default or Event of Default with respect to the
Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee, at the direction of the Holders of the Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this Agreement.
The foregoing provisions of this Section 2.6(c) shall be in lieu of ss.
316(a)(1)(B) of the Trust Indenture Act and such ss. 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Agreement and the
Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after the
occurrence of any default with respect to the Securities, transmit by mail,
first class postage prepaid, to the Holders of the Securities and to the
Sponsor, notices of all such defaults actually known to a Responsible Officer of
the Property Trustee, unless such defaults have been cured before the giving of
such notice (the term "defaults" for the purposes of this Section 2.7(a) being
hereby defined to be a Default as defined in the Indenture, not including any
periods of grace provided for therein and irrespective of the giving of any
notice provided therein); provided that, except for a default in the payment of
principal of (or premium, if any) or interest on any of the Debentures, the
Property Trustee shall be protected in withholding such notice if and so long as
a committee of Responsible Officers of the Property Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Property Trustee shall not be deemed to have actual
knowledge of any default except:
(i) a default under Sections 6.01(a) and 6.01(b) of the
Indenture; or
(ii) any default as to which the Property Trustee shall
have received written notice or of which a Responsible Officer of the
Property Trustee charged with the administration of the Agreement shall
have actual knowledge.
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(c) Within ten Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Property Trustee, the
Property Trustee shall transmit notice of such Event of Default to the Holders
of the Preferred Securities, the Administrative Trustees and the Sponsor, unless
such Event of Default shall have been cured, waived or otherwise eliminated. The
Sponsor and the Administrative Trustees shall file annually with the Property
Trustee a certification as to whether or not they are in compliance with all the
conditions and covenants applicable to them under this Agreement.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust continued hereby is named "Cox Radio Trust [___]" as
such name may be modified from time to time by the Administrative Trustees
following written notice to the Delaware Trustee, the Property Trustee and the
Holders of Securities. The Trust's activities may be conducted under the name of
the Trust or any other name deemed advisable by the Administrative Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Cox
Radio, Inc., 1400 Lake Hearn Drive, Atlanta, Georgia 30319. On ten Business
Days' prior written notice to the Delaware Trustee, the Property Trustee and the
Holders of Securities, the Administrative Trustees may designate another
principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities, (b) use the proceeds from the sale of the Securities
to acquire the Debentures in an aggregate principal amount equal to the
aggregate Liquidation Amount of such Securities, and (c) except as otherwise
limited herein, to engage in only those other activities necessary, advisable or
incidental thereto, including without limitation, those activities specified in
Sections 3.6, 3.8, 3.9, 3.10, 3.11 and/or 3.12.
SECTION 3.4 Authority.
Subject to the limitations provided in this Agreement and to
the specific duties of the Property Trustee, the Administrative Trustees shall
have exclusive and complete authority to carry out the purposes of the Trust. An
action taken by one or more of the Administrative Trustees in accordance with
their powers shall constitute the act of and serve to bind the Trust and an
action taken by the Property Trustee on behalf of the Trust in accordance with
its powers shall constitute the act of and serve to bind the Trust. In dealing
with the Trustees acting on behalf of the Trust, no Person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Agreement.
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SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Debentures and the Property Trustee Account or as otherwise provided in this
Agreement, legal title to all assets of the Trust shall be vested in the Trust.
The Holders shall not have legal title to any part of the assets of the Trust,
but shall have an undivided beneficial interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Administrative Trustees.
The Administrative Trustees shall have the exclusive power,
duty and authority, and are hereby authorized and directed, to cause the Trust
to engage in the following activities:
(a) to execute, deliver, issue and sell the Preferred Securities
and the Common Securities in accordance with this Agreement; provided, however,
that (i) the Trust may issue no more than one series of Preferred Securities and
no more than one series of Common Securities, (ii) there shall be no interests
in the Trust other than the Securities, and (iii) the issuance of Securities
shall be limited to a simultaneous issuance of both Preferred Securities and
Common Securities at the Closing Time and the Option Closing Date, if any;
(b) in connection with the issue and sale of the Preferred
Securities to:
(i) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be necessary
in order to qualify or register all or part of the Preferred Securities
in any State in which the Sponsor has determined to qualify or register
such Preferred Securities for sale;
(ii) at the direction of the Sponsor, execute and file an
application, prepared by the Sponsor, to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing or quotation of the Preferred Securities;
(iii) execute and deliver letters, documents, or
instruments with DTC and other Clearing Agencies relating to the
Preferred Securities;
(iv) if required, execute and file with the Commission a
registration statement on Form 8-A, including any amendments thereto,
prepared by the Sponsor, relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, as the
case may be; and
(v) execute and file any agreement, certificate or other
document which such Administrative Trustee deems necessary or
appropriate in connection with the issuance and sale of the Preferred
Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Administrative Trustees shall cause legal title to the Debentures to be held of
record in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of Common Securities;
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(d) to cause the Trust to enter into and to execute and deliver on
behalf of the Trust such agreements and arrangements as may be necessary or
desirable in connection with the sale of Preferred Securities to the
underwriters thereof and the consummation thereof, and to take all action, and
exercise all discretion, as may be necessary or desirable in connection with the
consummation thereof;
(e) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Special Event;
(f) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of ss.316(c) of the Trust Indenture Act,
Distributions, voting rights and redemptions, and to issue relevant notices to
the Holders of Preferred Securities and Holders of Common Securities as to such
actions and applicable record dates;
(g) to take all actions and perform such duties as may be required
of the Administrative Trustees pursuant to the terms of the Securities;
(h) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee
has the exclusive power to bring such Legal Action;
(i) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(j) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(k) to give the certificate required by ss. 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Administrative Trustee;
(l) to incur expenses that are necessary or incidental to carry
out any of the purposes of the Trust;
(m) to act as, or appoint another Person to act as, Registrar for
the Securities or to appoint a Paying Agent for the Securities as provided in
Section 7.4 except for such time as such power to appoint a Paying Agent is
vested in the Property Trustee;
(n) to give prompt written notice to the Property Trustee and to
Holders of the Securities of any notice received from the Debenture Issuer of
its election to defer payments of interest on the Debentures by extending the
interest payment period under the Indenture;
(o) to take all action that may be necessary or appropriate for
the preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Preferred
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
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(p) to take any action (provided that such action does not
materially adversely affect the interests of Holders), not inconsistent with
this Agreement or with applicable law, that the Administrative Trustees
determine in their discretion to be necessary or desirable in carrying out the
activities of the Trust as set out in this Section 3.6, including, but not
limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the Investment
Company Act;
(ii) causing the Trust to be classified for United States
Federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that
the Debentures will be treated as indebtedness of the Debenture Issuer
for United States Federal income tax purposes;
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Administrative Trustees, on
behalf of the Trust; and
(r) to execute and deliver and record, file or register, as
applicable, all documents, certificates, agreements or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary, advisable or incidental to the foregoing.
The Administrative Trustees must exercise the powers set forth
in this Section 3.6 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Administrative Trustees
shall not take any action that is inconsistent with the purposes and functions
of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall
have none of the powers or the authority of the Property Trustee set forth in
Section 3.8.
Any expenses incurred by the Administrative Trustees pursuant
to this Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust and the Trustees (including the Property Trustee and
the Delaware Trustee) shall not, and the Administrative Trustees shall cause the
Trust not to, engage in any activity other than as required or authorized by
this Agreement. In particular, the Trust shall not:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such proceeds to
Holders of Securities pursuant to the terms of this Agreement and of
the Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose
or execute any mortgage in respect of, or pledge, any Trust property;
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(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as
to vary the Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
(vii) so long as any Debentures are held by the Property
Trustee, the Trustees shall not (A) direct the time, method and place
of conducting any proceeding with respect to any remedy available to
the Debenture Trustee, or exercise any trust or power conferred upon
the Debenture Trustee with respect to the Debentures, (B) waive any
past default that is waivable under the Indenture, (C) exercise any
right to rescind or annul a declaration of acceleration of the maturity
of the principal of the Debentures, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures where
such consent shall be required, without, in each case, obtaining (1)
the prior approval of the Holders of a Majority in Liquidation Amount
of all outstanding Securities; provided, however, that where a consent
under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior approval of each Holder of
Securities and (2) an Opinion of Counsel delivered to the Trust from
tax counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation for
United States Federal income tax purposes on account of such action;
(viii) revoke any action previously authorized or approved
by a vote of the Holders of Preferred Securities except by subsequent
vote of such Holders;
(ix) revoke any action previously authorized or approved
by a vote of the Holders of Common Securities except by subsequent vote
of such Holders; or
(x) undertake (or permit to be undertaken) any activity
that would cause the Trust not to be classified for United States
Federal income tax purposes as a grantor trust.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held
of record in the name of the Property Trustee in trust for the benefit of the
Trust and the Holders of the Securities. The right, title and interest of the
Property Trustee to the Debentures shall vest automatically in each Person who
may hereafter be appointed as Property Trustee in accordance with Section 5.7.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Administrative Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
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(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Trustee Account") in the name of
and under the exclusive control of the Property Trustee on behalf of
the Holders of the Securities and, upon the receipt of payments of
funds made in respect of the Debentures held by the Property Trustee,
deposit such funds into the Property Trustee Account and make payments
or cause the Paying Agent to make payments to the Holders of the
Preferred Securities and Holders of the Common Securities from the
Property Trustee Account in accordance with Section 6.1. Funds in the
Property Trustee Account shall be held uninvested until disbursed in
accordance with this Agreement. The Property Trustee Account shall be
an account that is maintained with a banking institution the rating on
whose long-term unsecured indebtedness is at least equal to the rating
assigned to the Preferred Securities by a "nationally recognized
statistical rating organization", as that term is defined for purposes
of Rule 436(g)(2) under the Securities Act, which as of the date hereof
is rated BB by Standard & Poor's Ratings Services and Ba2 by Moody's
Investors Service, Inc. If the ratings specified above are changed, the
Sponsor shall inform the Property Trustee of any new ratings assigned
to the Preferred Securities;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Preferred
Securities and the Common Securities to the extent the Debentures are
redeemed or mature;
(iii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Debentures to Holders of
Securities upon the occurrence of certain events; and
(iv) take such ministerial action as may be requested by
the Administrative Trustees in connection with the winding up of the
affairs of or liquidation of the Trust in accordance with this
Agreement and the preparation, execution and filing of a certificate of
cancellation or other appropriate certificates with the Secretary of
State of the State of Delaware and other appropriate governmental
authorities.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of this Agreement and the Securities.
(e) Subject to Section 3.9, the Property Trustee shall take any
Legal Action which arises out of or in connection with an Event of Default of
which a Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's duties and obligations under this Agreement or the Trust
Indenture Act and, if the Property Trustee shall have failed to take such Legal
Action, the Holders of the Preferred Securities in at least an aggregate
Liquidation Amount equal to the specified percentage of Holders of Debentures
entitled to take such Legal Action may, to the fullest extent permitted by law,
take such Legal Action without first proceeding against the Property Trustee or
the Trust; provided, however, that if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the
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Debenture Issuer to pay the principal of or premium, if any, or interest on the
Debentures on the date such principal, premium, if any, or interest is otherwise
payable (or in the case of redemption, on the redemption date), then a Holder of
Preferred Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of or premium, if any, or interest on
the Debentures having a principal amount equal to the aggregate Liquidation
Amount of the Preferred Securities of such Holder on or after the respective due
date specified in the Debentures (a "Direct Action"). Except as provided in the
preceding sentence, the Holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Debentures.
(f) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of Securities
pursuant to the terms of the Securities and this Agreement; or
(ii) a successor Property Trustee has been appointed and
has accepted that appointment in accordance with Section 5.7 (a
"Successor Property Trustee").
(g) The Property Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default actually known to a Responsible Officer of
the Property Trustee occurs and is continuing, the Property Trustee shall, for
the benefit of Holders of the Securities, enforce its rights as holder of the
Debentures subject to the rights of the Holders pursuant to the terms of the
Securities and this Agreement.
(h) The Property Trustee shall be authorized to undertake any
actions set forth in ss. 317(a) of the Trust Indenture Act.
(i) For such time as the Property Trustee is the Paying Agent, the
Property Trustee may authorize one or more Persons to act as additional Paying
Agents and to pay Distributions, redemption payments or liquidation payments on
behalf of the Trust with respect to all Securities and any such Paying Agent
shall comply with ss. 317(b) of the Trust Indenture Act. Any such additional
Paying Agent may be removed with or without cause by the Property Trustee at any
time the Property Trustee remains as Paying Agent and a successor Paying Agent
or additional Paying Agents may be (but are not required to be) appointed at any
time by the Property Trustee while the Property Trustee is acting as Paying
Agent.
(j) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Administrative
Trustees set forth in Section 3.6.
Notwithstanding anything expressed or implied to the contrary in this
Agreement or any Annex or Exhibit hereto, the Property Trustee must exercise the
powers set forth in this Section 3.8 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3.
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SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Agreement and in the Securities and no implied covenants or
obligations shall be read into this Agreement against the Property Trustee. In
case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) of which a Responsible Officer of the Property Trustee
has actual knowledge, the Property Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, its own bad faith or its own willful misconduct,
except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Agreement and in the Securities and the Property
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Agreement and in the Securities, and no implied covenants or
obligations shall be read into this Agreement against the
Property Trustee; and
(B) in the absence of bad faith on the part of
the Property Trustee, the Property Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Property Trustee and conforming to
the requirements of this Agreement; provided, however, that in
the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to
the Property Trustee, the Property Trustee shall be under a
duty to examine the same to determine whether or not they
conform to the requirements of this Agreement (but shall not
be required to confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Property Trustee, unless it shall be proved that the Property Trustee
was negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a Majority in
Liquidation Amount of the Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Agreement;
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(iv) no provision of this Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Agreement or indemnity reasonably satisfactory to the Property Trustee
against such risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safekeeping and physical preservation of the Debentures and
the Property Trustee Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar property for
its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Agreement and the
Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or sufficiency
of the Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
in writing with the Sponsor. Money held by the Property Trustee need
not be segregated from other funds held by it except in relation to the
Property Trustee Account maintained by the Property Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by law;
and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Sponsor
with their respective duties under this Agreement, nor shall the
Property Trustee be liable for any default or misconduct of the
Administrative Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property 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,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties;
(ii) any direction or act of the Sponsor or the
Administrative Trustees contemplated by this Agreement may be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Agreement, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
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conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor or the
Administrative Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any re-recording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel or
other experts of its selection and the advice or opinion of such
counsel and experts with respect to legal matters or advice within the
scope of such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion, such counsel may be counsel to the Sponsor or any of
its Affiliates, and may include any of its employees; and the Property
Trustee shall have the right at any time to seek instructions
concerning the administration of this Agreement from any court of
competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement at
the request or direction of any Holder, unless such Holder shall have
provided to the Property Trustee security and indemnity, reasonably
satisfactory to the Property Trustee, against the costs, expenses
(including reasonable attorneys' fees and expenses and the expenses of
the Property Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by
the Property Trustee in respect of the time, method or place of
conducting any proceeding for any remedy available to the Property
Trustee or the exercise of any trust or power conferred on the Property
Trustee under this Agreement;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through agents, custodians, nominees or attorneys and the
Property 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;
(ix) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Property Trustee or its agents
alone shall be sufficient and effective to perform any such action and
no third party shall be required to inquire as to the authority of the
Property Trustee to so act or as to its compliance with any of the
terms and provisions of this Agreement, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's taking
such action;
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(x) whenever in the administration of this Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in Liquidation Amount of the Securities
as would be entitled to direct the Property Trustee under the terms of
the Securities in respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in
conclusively relying on, or acting in accordance with, such
instructions;
(xi) except as otherwise expressly provided by this
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Agreement; and
(xii) the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith,
without negligence, and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement.
(b) No provision of this Agreement shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
(c) It is expressly understood and agreed by the parties hereto
that in fulfilling its obligations as Property Trustee hereunder on behalf of
the Trust, (i) any agreements or instruments executed or delivered by The Bank
of New York are executed and delivered not in its individual capacity but solely
as Property Trustee under this Agreement in the exercise of the powers and
authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as representations, warranties, covenants, undertakings and
agreements by The Bank of New York in its individual capacity but is made and
intended for the purpose of binding only the Trust, and (iii) under no
circumstances (except with respect to funds delivered to it relating to payments
in respect of the Securities) shall The Bank of New York in its individual
capacity be personally liable for the payment of any indebtedness or expenses of
the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this
Agreement except if such breach or failure is due to any negligence, bad faith
or willful misconduct of the Property Trustee.
SECTION 3.11 Delaware Trustee.
(a) Notwithstanding any other provision of this Agreement other
than Section 5.2, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Administrative Trustees or the Property Trustee
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described in this Agreement (except as required under the Business Trust Act).
Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of ss.3807 of the
Business Trust Act.
(b) It is expressly understood and agreed by the parties hereto
that in fulfilling its obligations as Delaware Trustee hereunder on behalf of
the Trust, (i) any agreements or instruments executed or delivered by The Bank
of New York (Delaware) are executed and delivered not in its individual capacity
but solely as Delaware Trustee under this Agreement in the exercise of the
powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Trust is made and intended not as representations, warranties, covenants,
undertakings and agreements by The Bank of New York (Delaware) in its individual
capacity but is made and intended for the purpose of binding only the Trust, and
(iii) under no circumstances shall The Bank of New York (Delaware) in its
individual capacity be personally liable for the payment of any indebtedness or
expenses of the Trust or be liable for the breach or failure of any obligation,
representation, warranty, or covenant made or undertaken by the Trust under this
Agreement except if such breach or failure is due to any gross negligence, bad
faith or willful misconduct of the Delaware Trustee.
SECTION 3.12 Execution of Documents.
Except as otherwise required by the Business Trust Act or
applicable law, each Administrative Trustee, individually, is authorized to
execute and deliver on behalf of the Trust any documents, agreements,
instruments or certificates that the Administrative Trustees have the power and
authority to execute and deliver pursuant to this Agreement.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Agreement and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Agreement or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless earlier dissolved pursuant to the provisions
of Article VIII hereof, shall dissolve on ______________________.
SECTION 3.15 Mergers.
(a) The Trust may not merge with or into, convert to, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any Person, except as
described in Section 3.15(b) and (c) and except with respect to the distribution
of all Debentures to Holders of Securities pursuant to Section 8.1(a)(iii).
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(b) The Trust may, at the request of the Sponsor, with the consent
of the Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Property Trustee, merge with or into,
convert to, consolidate, amalgamate, or be replaced by, or convey, transfer or
lease its properties and assets as an entirety or substantially as an entirety
to, a trust organized as such under the laws of any State; provided that:
(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Securities other
securities having substantially the same terms as the
Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Securities rank with
respect to Distributions and payments upon liquidation,
redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of the
Successor Entity that possesses the same powers and duties as the
Property Trustee with respect to the Debentures;
(iii) the Successor Securities (excluding any securities
substituted for any Common Securities) are listed, quoted or included
for trading, or any Successor Securities will be listed, quoted or
included for trading, upon notification of issuance, on any national
securities exchange or with any other organization on which the
Preferred Securities are then listed, quoted or included;
(iv) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) or the Debentures to be
downgraded or placed under surveillance or review by any nationally
recognized statistical rating organization that publishes a rating on
the Preferred Securities or the Debentures;
(v) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders
of the Securities (including the holders of any Successor Securities)
in any material respect (other than with respect to any dilution of the
interests of such Holders or holders, as the case may be, in the
Successor Entity);
(vi) the Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Sponsor
has received an opinion of a nationally recognized independent counsel
to the Trust experienced in such matters to the effect that:
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(A) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of
the Holders of the Securities (including the holders of any
Successor Securities) in any material respect (other than with
respect to any dilution of the interests of such Holders or
holders, as the case may be, in the Successor Entity); and
(B) following such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer
or lease, neither the Trust nor the Successor Entity, if any,
will be required to register as an Investment Company; and
(viii) the Sponsor or any permitted successor or assignee
owns all of the common securities of the Successor Entity and
guarantees the obligations of the Successor Entity under the Successor
Securities at least to the extent provided by the Preferred Securities
Guarantee and the Common Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in Liquidation Amount of the Securities,
merge with or into, convert to, consolidate, amalgamate, or be replaced by, or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to, any other Person or permit any other Person to
merge with or into, consolidate, amalgamate, or replace it if such merger,
conversion, consolidation, amalgamation, replacement, conveyance, transfer or
lease would cause the Trust or the Successor Entity, if any, not to be
classified as a grantor trust for United States Federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
At the Closing Time and on any Option Closing Date, the Sponsor will
purchase all of the Common Securities then issued by the Trust, in an amount
equal to at least 3% of the total capital of the Trust, at the same time as the
Preferred Securities are issued and sold. The aggregate Liquidation Amount of
Common Securities at any time shall not be less than 3% of the total capital of
the Trust.
For so long as the Preferred Securities remain outstanding, the Sponsor
covenants (i) to maintain, directly or indirectly, 100% ownership of the Common
Securities; provided, however, that any permitted successor of the Sponsor under
the Indenture may succeed to the Sponsor's interest in the Common Securities,
(ii) to use its best efforts to cause the Trust (a) to remain a statutory
business trust, except in connection with a distribution of Debentures to the
Holders of Securities in liquidation of the Trust, the redemption of all the
Securities, or certain mergers, consolidations or amalgamations, each as
permitted by this Agreement, and not to voluntarily dissolve, wind up, liquidate
or be terminated, except as permitted by this Agreement, and (b) to otherwise
continue to be classified as a grantor trust for United States federal income
tax purposes, (iii) to use its best efforts to ensure that the Trust shall not
be an Investment
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Company for purposes of the Investment Company Act, (iv) to use its best efforts
to cause each Holder of Securities to be treated as owning an undivided
beneficial interest in the Debentures and (v) to take no action which would
cause the dissolution, liquidation or winding up of the Trust, except as
otherwise provided in this Agreement.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issuance and sale of the Preferred
Securities, the Sponsor shall have the right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust, execute and file with the
Commission the registration statement on Form S-3 pertaining to the Preferred
Securities, including any amendments thereto and to register the Preferred
Securities Guarantee related thereto;
(b) to determine the jurisdictions in which to take appropriate
action to qualify or register for sale all or part of the Preferred Securities
and to do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for execution
and filing any documents to be executed and filed by the Trust, as the Sponsor
deems necessary or advisable in order to comply with the applicable laws of any
such jurisdictions;
(c) if deemed necessary or advisable by the Sponsor, to prepare
for filing by the Trust an application to the New York Stock Exchange or any
other national stock exchange or the Nasdaq National Market for listing or
quotation of the Preferred Securities;
(d) to prepare for filing by the Trust, execute and file with the
Commission a registration statement on Form 8-A, including any amendments
thereto, relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, as the case may be, including any amendments
thereto; and
(e) to negotiate the terms of, execute, enter into and deliver the
Underwriting Agreement providing for the sale of the Preferred Securities.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders of
Preferred Securities to bring one or more Direct Actions under the circumstances
specified in this Agreement.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees;
and
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(b) after the issuance of any Securities, the number of Trustees
may be increased or decreased by vote of the Holders of a Majority in
Liquidation Amount of the Common Securities voting as a class at a meeting of
the Holders of the Common Securities;
provided, however, that, the number of Trustees shall in no event be less than
two (2); provided further that (1) one Trustee shall be a Person meeting the
requirements of Section 5.2 (the "Delaware Trustee"); (2) there shall be at
least one Trustee who is an employee or officer of, or is affiliated with the
Sponsor (an "Administrative Trustee"); and (3) one Trustee shall be the Property
Trustee for so long as this Agreement is required to qualify as an indenture
under the Trust Indenture Act, and such Trustee may also serve as Delaware
Trustee if it meets the applicable requirements. Notwithstanding the above,
unless an Event of Default shall have occurred and be continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust Indenture
Act or of any jurisdiction in which any part of the Trust's property may at the
time be located, the Holders of a Majority in Liquidation Amount of the Common
Securities acting as a class at a meeting of the Holders of the Common
Securities, and the Administrative Trustees shall have power to appoint one or
more Persons either to act as a co-trustee, jointly with the Property Trustee,
of all or any part of the Trust's property, or to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of this Agreement. In case an Event of Default has
occurred and is continuing, the Property Trustee alone shall have power to make
any such appointment of a co-trustee.
SECTION 5.2 Delaware Trustee.
For so long as required by the Business Trust Act, the
Delaware Trustee shall be:
(a) a natural person who is a resident of the State of Delaware;
or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the requirements
of applicable law, provided, however, if the Property Trustee has its principal
place of business in the State of Delaware and otherwise meets the requirements
of applicable law, then the Property Trustee shall also be the Delaware Trustee
and Section 3.11 shall have no application.
SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (the "Property
Trustee") which shall act as Property Trustee and which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an indenture trustee under the
Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least
$50,000,000, and subject to supervision
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or examination by federal, state, territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this
Section 5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be eligible
to so act under Section 5.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 5.7(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of ss. 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in ss. 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of ss. 310(b) of the Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Agreement for purposes of clause (i) of the first
provision contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: (212) 815-5758
Telecopier: (212) 815-5915
SECTION 5.4 Certain Qualifications of Administrative Trustees and Delaware
Trustee Generally.
Each Administrative Trustee and the Delaware Trustee (unless
the Property Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
SECTION 5.5 Administrative Trustees.
The initial Administrative Trustees shall be:
Robert F. Neil
Maritza C. Pichon
Richard Jacobson
c/o Cox Radio, Inc.
1400 Lake Hearn Drive
Atlanta, Georgia 30319
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Telephone: (404) 843-5000
Telecopier: (404) 843-5142
(a) Except as expressly set forth in this Agreement and except if
a meeting of the Administrative Trustees is called with respect to any matter
over which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
(b) Unless otherwise determined by the Administrative Trustees,
and except as otherwise required by the Business Trust Act or applicable law,
any Administrative Trustee acting alone is authorized to execute on behalf of
the Trust any documents which the Administrative Trustees have the power and
authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 Delaware Trustee.
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
23 White Clay Center
Route 273
Newark, Delaware 19711
Attention: Corporate Trust Administration
Telephone: (212) 815-5758
Telecopier: (212) 815-5915
SECTION 5.7 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.7(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) unless an Event of Default shall have occurred and be
continuing after the issuance of any Securities, by vote of the Holders
of a Majority in Liquidation Amount of the Common Securities voting as
a class at a meeting of the Holders of the Common Securities; and
(iii) if an Event of Default shall have occurred and be
continuing after the issuance of the Securities, with respect to the
Property Trustee or the Delaware Trustee, by vote of Holders of a
Majority in Liquidation Amount of the Preferred Securities voting as a
class at a meeting of Holders of the Preferred Securities (it being
understood that in no event will the Holders of the Preferred
Securities have the right to vote, appoint, remove or replace the
Administrative Trustees, which voting rights are exclusively vested in
the Holder of the Common Securities).
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(b) (i) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.7(a) until a Successor Property Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Property Trustee and delivered to the Administrative Trustees
and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not
be removed in accordance with Section 5.7(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections
5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the removed Delaware
Trustee, the Property Trustee (if the removed Delaware Trustee is not
also the Property Trustee), the Administrative Trustees and the
Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the other Trustees, the Sponsor and the Trust, which resignation shall take
effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor, the Delaware Trustee (if the resigning
Property Trustee is not also the Delaware Trustee) and the
resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the Holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Property Trustee (if the resigning Delaware Trustee is not also the
Property Trustee), the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities or, if an Event of
Default shall have occurred and be continuing after the issuance of the
Securities, the Holders of the Preferred Securities shall use their best efforts
to promptly appoint a Successor Delaware Trustee or Successor Property Trustee,
as the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 5.7.
(e) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.7 within 60 days after delivery of an instrument of resignation or removal,
the Property Trustee or Delaware Trustee
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resigning or being removed, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.8 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1, or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Administrative
Trustees or, if there are more than two, a majority of the Administrative
Trustees shall be conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance with Section 5.7.
SECTION 5.9 Effect of Vacancies.
To the fullest extent permitted by law, the death,
resignation, retirement, removal, bankruptcy, dissolution, liquidation,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to dissolve, terminate or annul the Trust or to terminate this Agreement.
Whenever a vacancy in the number of Administrative Trustees shall occur, until
such vacancy is filled by the appointment of an Administrative Trustee in
accordance with Section 5.7, the Administrative Trustees in office, regardless
of their number, shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the Administrative
Trustees by this Agreement.
SECTION 5.10 Meetings.
If there is more than one Administrative Trustee, meetings of
the Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile or
electronic mail, with a hard copy by overnight courier) not less than 24 hours
before such meeting. Notice of any telephonic meetings of the Administrative
Trustees or any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile or electronic mail, with a hard copy by
overnight courier) not less than 24 hours before a meeting. Notices shall
contain a brief statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person, by telephone or by video transmission)
of an Administrative Trustee at a meeting shall constitute a waiver of notice of
such meeting except where an Administrative Trustee attends a meeting for the
express purpose of objecting to the transaction of any activity on the ground
that the meeting has not been lawfully called or convened. Unless provided
otherwise in this Agreement, any action of the Administrative Trustees may be
taken at a meeting by vote of a majority of the Administrative Trustees present
(whether in person, by
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telephone or by video transmission) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a meeting by the unanimous
written consent of the Administrative Trustees. In the event there is only one
Administrative Trustee, any and all action of such Administrative Trustee shall
be evidenced by a written consent of such Administrative Trustee.
SECTION 5.11 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 3.6, including any registration statement or amendment
thereto filed with the Commission; and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of this Agreement.
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee or
any Administrative Trustee that is not a natural person, as the case may be, may
be merged, converted or consolidated; and any Person resulting from any merger,
conversion or consolidation to which the Property Trustee or the Delaware
Trustee, as the case may be, shall be a party, or any Person succeeding to all
or substantially all the corporate trust business of the Property Trustee or the
Delaware Trustee, as the case may be, shall be the successor of the Property
Trustee or the Delaware Trustee, as the case may be, hereunder, provided such
Person shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, such successor shall notify the Sponsor and
the Trust promptly of its succession.
SECTION 5.13 Compensation.
The Sponsor agrees:
(a) to pay to the Property Trustee and the Delaware Trustee
from time to time such compensation as shall be agreed in writing between the
Company and the Property Trustee and the Delaware Trustee, respectively, for all
services rendered by them hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust); and
(b) to reimburse the Property Trustee and the Delaware Trustee
upon their request for reasonable expenses, disbursements and advances incurred
or made by the Property Trustee or the Delaware Trustee, respectively, in
accordance with any provision of this Agreement (including the reasonable
compensation and the expenses and advances of its agents and
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counsel), except any such expense or advance as may be attributable to their
gross negligence (or, in the case of the Property Trustee, negligence), willful
misconduct or bad faith.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions in accordance with the
applicable terms of the relevant Holder's Securities. Distributions shall be
made on the Preferred Securities and the Common Securities in accordance with
the respective terms and preferences set forth herein and in Annex I. If and to
the extent that the Debenture Issuer makes a payment of interest (including any
compounded interest and additional interest), premium and/or principal on the
Debentures held by the Property Trustee (the amount of any such payment being a
"Payment Amount"), the Property Trustee shall and is directed, to the extent
funds are available for that purpose, to make a distribution (a "Distribution")
of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Administrative Trustees shall on behalf of the Trust issue
one class of preferred securities representing undivided beneficial interests in
the assets of the Trust having such terms as are set forth in Annex I (the
"Preferred Securities") and one class of common securities representing
undivided beneficial interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Common Securities"). The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(b) The consideration received by the Trust for the issuance of
the Securities shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this Agreement,
the Securities so issued shall be validly issued, fully paid and non-assessable.
(d) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Agreement, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Agreement.
SECTION 7.2 Execution and Authentication.
(a) The Securities shall be signed on behalf of the Trust by an
Administrative Trustee. In case any Administrative Trustee of the Trust who
shall have signed any of the Securities shall cease to be such Administrative
Trustee before the Securities so signed shall be delivered by the Trust, such
Securities nevertheless may be delivered as though the Person who signed such
Securities had not ceased to be such Administrative Trustee; and any Securities
may
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be signed on behalf of the Trust by such persons who, at the actual date of
execution of such Security, shall be the Administrative Trustees of the Trust,
although at the date of the execution and delivery of this Agreement any such
person was not an Administrative Trustee.
(b) One Administrative Trustee shall sign the Preferred Securities
for the Trust by manual or facsimile signature.
A Preferred Security shall not be valid until authenticated by
the manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Agreement. A Common Security shall be valid upon
execution by an Administrative Trustee without any act of the Property Trustee.
Upon a written order of the Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate the Preferred Securities for
original issue.
The aggregate number of Preferred Securities outstanding at
any time shall not exceed the number set forth in the terms in Annex I hereto
except as provided in Section 7.6.
The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Preferred Securities. An authenticating
agent may authenticate Preferred Securities whenever the Property Trustee may do
so. Each reference in this Agreement to authentication by the Property Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Property Trustee hereunder with respect to the Sponsor or an
Affiliate.
SECTION 7.3 Form and Dating.
The Preferred Securities and the Property Trustee's
certificate of authentication shall be substantially in the form of Exhibit A-1
and the Common Securities shall be substantially in the form of Exhibit A-2,
each of which is hereby incorporated in and expressly made a part of this
Agreement. The Securities may be in definitive or global form and may be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to an Administrative Trustee, as evidenced by the
execution thereof. The Securities may have letters, CUSIP or other numbers,
notations or other marks of identification or designation and such legends or
endorsements required by law, stock exchange or quotation system rule,
agreements to which the Trust is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Trust). An
Administrative Trustee, at the direction of the Sponsor, shall furnish any such
legend not contained in Exhibits A-1 or A-2 to the Property Trustee in writing.
Each Preferred Security shall be dated the date of its authentication. The terms
and provisions of the Securities set forth in Annex I and the forms of
Securities set forth in Exhibits A-1 and A-2 are part of the terms of this
Agreement and to the extent applicable, the Property Trustee and the Sponsor, by
their execution and delivery of this Agreement, expressly agree to such terms
and provisions and to be bound thereby.
The following four paragraphs shall apply only to any Global
Preferred Securities.
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The Preferred Securities shall be issued in the form of one or
more permanent global Securities in definitive, fully registered form without
Distribution coupons with the appropriate global legends set forth in Exhibit
A-1 hereto (a "Global Preferred Security"), which shall be deposited on behalf
of the purchasers of the Preferred Securities represented thereby with the
Property Trustee, as custodian for the Clearing Agency, and registered in the
name of the Clearing Agency or a nominee of the Clearing Agency, duly executed
by an Administrative Trustee on behalf of the Trust and authenticated by the
Property Trustee as hereinafter provided. The number of Preferred Securities
represented by the Global Preferred Security may from time to time be increased
or decreased by adjustments made on the records of the Property Trustee and the
Clearing Agency or its nominee as hereinafter provided. The Holder of a Global
Preferred Security may grant proxies and otherwise authorize any Person,
including Participants (as defined below) and Persons that may hold interests
through Participants, to take any action which such Holder is entitled to take
under this Agreement or the Securities.
An Administrative Trustee shall execute and the Property
Trustee shall, in accordance with this Section 7.3, authenticate and make
available for delivery initially one or more Global Preferred Securities that
(i) shall be registered in the name of Cede & Co. or other nominee of such
Clearing Agency and (ii) shall be delivered by the Property Trustee to such
Clearing Agency or pursuant to such Clearing Agency's written instructions or
held by the Property Trustee as custodian for the Clearing Agency.
Members of, or participants in, the Clearing Agency
("Participants") shall have no rights under this Agreement with respect to any
Global Preferred Security held on their behalf by the Clearing Agency or by the
Property Trustee as the custodian of the Clearing Agency or under such Global
Preferred Security, and the Clearing Agency may be treated by the Trust, the
Property Trustee and any agent of the Trust or the Property Trustee as the
absolute owner of such Global Preferred Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trust, the
Property Trustee or any agent of the Trust or the Property Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Clearing Agency or impair, as between the Clearing Agency and its
Participants, the operation of customary practices of such Clearing Agency
governing the exercise of the rights of a holder of a beneficial interest in any
Global Preferred Security.
Except as provided in Section 9.2, owners of beneficial
interests in a Global Preferred Security will not be entitled to receive
physical delivery of Preferred Securities in definitive form ("Definitive
Preferred Securities").
SECTION 7.4 Registrar and Paying Agent.
The Trust shall maintain in the Borough of Manhattan, The City
of New York, (i) an office or agency where Preferred Securities may be presented
for registration of transfer ("Registrar") and (ii) an office or agency where
Preferred Securities may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Preferred Securities and of their
transfer. The Trust may appoint the Registrar and the Paying Agent and may
appoint one or more co-registrars and one or more additional paying agents in
such other locations as it shall determine. The term "Registrar" includes any
additional registrar and the term "Paying Agent" includes any additional paying
agent. The Administrative Trustees may change any Registrar or
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Paying Agent without prior notice to any Holder. The Administrative Trustees
shall notify the Property Trustee of the name and address of any Agent not a
party to this Agreement. If the Trust fails to appoint or maintain another
entity as Registrar or Paying Agent, the Property Trustee shall act as such, and
as Paying Agent the Property Trustee shall have the rights set forth in Section
3.8(i). The Trust or any of its Affiliates may act as Registrar or Paying Agent.
The Trust shall act as Registrar and Paying Agent for the Common Securities.
Any Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' prior written notice to the Property Trustee, the Administrative
Trustees and the Sponsor. In the event that the Property Trustee shall no longer
be the Paying Agent, the Trust shall appoint a successor Paying Agent (which
shall be a bank or trust company acceptable to the Sponsor) to act as Paying
Agent.
The Trust and the Administrative Trustees initially appoint
the Property Trustee as Registrar and Paying Agent for the Preferred Securities.
SECTION 7.5 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the
Property Trustee to agree in writing that the Paying Agent will hold in trust
for the benefit of Holders or the Property Trustee all money held by the Paying
Agent for the payment of liquidation amounts or Distributions on the Securities
and will notify the Property Trustee if there are insufficient funds for such
purpose. While any such insufficiency continues, the Property Trustee may
require a Paying Agent to pay all money held by it to the Property Trustee. The
Trust at any time may require a Paying Agent to pay all money held by it to the
Property Trustee and to account for any money disbursed by it. Upon payment over
to the Property Trustee, the Paying Agent (if other than the Trust or an
Affiliate of the Trust) shall have no further liability for the money. If the
Trust or the Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent.
SECTION 7.6 Replacement Securities.
If a Holder of a Security claims that a Security owned by it
has been lost, destroyed or wrongfully taken or if such Security is mutilated
and is surrendered to the Trust or, in the case of the Preferred Securities, to
the Property Trustee, an Administrative Trustee shall execute and the Property
Trustee shall authenticate and make available for delivery a replacement
Security if the Property Trustee's and the Trust's requirements, as the case may
be, are met. An indemnity bond must be provided by the Holder which, in the
judgment of the Property Trustee, is sufficient to protect the Trustees, the
Sponsor or any authenticating agent from any loss which any of them may suffer
if a Security is replaced. The Trust may charge such Holder for its expenses in
replacing a Security.
Every replacement Security is an additional beneficial
interest in the Trust.
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SECTION 7.7 Outstanding Preferred Securities.
The Preferred Securities outstanding at any time are all the
Preferred Securities authenticated by the Property Trustee except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Preferred Security is replaced, paid or purchased
pursuant to Section 7.6 hereof, it ceases to be outstanding unless the Property
Trustee receives proof satisfactory to it that the replaced, paid or purchased
Preferred Security is held by a bona fide purchaser.
If Preferred Securities are considered paid in accordance with
the terms of this Agreement, they cease to be outstanding and Distributions
thereon shall cease to accumulate.
A Preferred Security does not cease to be outstanding because
the Trust, the Sponsor or an Affiliate of the Sponsor holds such Preferred
Security.
SECTION 7.8 Preferred Securities in Treasury.
In determining whether the Holders of the required amount of
Preferred Securities have concurred in any direction, waiver or consent,
Preferred Securities owned by the Trust, the Sponsor or an Affiliate of the
Sponsor, as the case may be, shall be disregarded and deemed not to be
outstanding, except that for the purposes of determining whether the Property
Trustee shall be fully protected in relying on any such direction, waiver or
consent, only Preferred Securities which a Responsible Officer of the Property
Trustee actually knows are so owned shall be so disregarded.
SECTION 7.9 Temporary Securities.
Until Definitive Securities are ready for delivery, the Administrative
Trustees may prepare and, in the case of the Preferred Securities, the Property
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of Definitive Securities but may have variations that
the Trust considers appropriate for temporary Securities. Without unreasonable
delay, the Administrative Trustees shall prepare and, in the case of the
Preferred Securities, the Property Trustee shall authenticate Definitive
Securities in exchange for temporary Securities.
SECTION 7.10 Cancellation.
The Trust at any time may deliver Preferred Securities to the
Property Trustee for cancellation. The Registrar and Paying Agent shall forward
to the Property Trustee any Preferred Securities surrendered to them for
registration of transfer, redemption, exchange or payment. The Property Trustee
shall promptly cancel all Preferred Securities surrendered for registration of
transfer, redemption, exchange, payment, replacement or cancellation and shall
dispose of cancelled Preferred Securities in accordance with its procedures for
the disposition of cancelled Preferred Securities in effect as of the date of
such disposition, provided that the Property Trustee shall not be obligated to
destroy Preferred Securities, and the Property Trustee shall deliver a
certificate of disposition to the Sponsor. The Trust may not issue new Preferred
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Securities to replace Preferred Securities that it has paid or redeemed or that
have been delivered to the Property Trustee for cancellation or that any Holder
has exchanged.
SECTION 7.11 CUSIP Numbers.
The Trust, in issuing the Preferred Securities, may use
"CUSIP" numbers (if then generally in use), and, if so, the Property Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders
of Preferred Securities; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Preferred 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 Preferred Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Sponsor will promptly notify the
Property Trustee of any change in the CUSIP numbers.
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.
(a) The Trust shall automatically dissolve and be wound up upon
the first to occur of the following events:
(i) the bankruptcy of the Sponsor;
(ii) (A) the filing of a certificate of dissolution or
liquidation or its equivalent with respect to the Sponsor or (B) the
revocation of the Sponsor's charter and the expiration of 90 days after
the date of revocation without a reinstatement thereof;
(iii) the distribution of a Like Amount of the Debentures
to the Holders of the Securities, provided that the Property Trustee
has received written notice from the Sponsor directing the Property
Trustee to dissolve the Trust (which direction is optional and, except
as otherwise expressly provided herein, within the discretion of the
Sponsor), and provided, further, that such dissolution is conditioned
on the receipt by the Administrative Trustees' receipt of an opinion of
an independent tax counsel experienced in such matters (a "No
Recognition Opinion") to the effect that the Holders of the Securities
will not recognize any gain or loss for United States Federal income
tax purposes as a result of the dissolution of the Trust and the
distribution of the Debentures;
(iv) the entry of a decree of judicial dissolution of the
Trust by a court of competent jurisdiction;
(v) the redemption of all of the Securities and the
payment to the Holders of any and all amounts necessary therefor, all
in accordance with the terms of the Securities; or
(vi) the dissolution of the Trust as provided in Section
3.14.
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(b) As soon as is practicable upon completion of winding up of the
Trust following the occurrence of an event referred to in Section 8.1(a), an
Administrative Trustee shall terminate the Trust by filing a certificate of
cancellation with the Secretary of State of the State of Delaware in accordance
with the Business Trust Act.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Agreement and in the
terms of the Securities. To the fullest extent permitted by law, any transfer or
purported transfer of any Security not made in accordance with this Agreement
shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be
freely transferable.
(c) To the fullest extent permitted by law, the Sponsor may not
transfer the Common Securities except for any transfer (whether voluntarily or
by operation of law) permitted under Article 5 of the Indenture.
(d) The Administrative Trustees shall provide for the registration
of Securities and of the transfer of Securities, which will be effected without
charge but only upon payment (with such indemnity as the Administrative Trustees
may require) in respect of any tax or other governmental charges that may be
imposed in relation to it. Upon surrender for registration of transfer of any
Securities, the Administrative Trustees shall cause one or more new Securities
to be issued in the name of the designated transferee or transferees. Every
Security surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Administrative Trustees duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Security surrendered for registration of
transfer shall be canceled by the Administrative Trustees. A transferee of a
Security shall be entitled to the rights and subject to the obligations of a
Holder hereunder upon the receipt by such transferee of a Security. By
acceptance of a Security, each transferee shall be deemed to have agreed to be
bound by this Agreement.
SECTION 9.2 Transfer Procedures and Restrictions
(a) Transfer and Exchange of Definitive Preferred Securities.
When Definitive Preferred Securities are presented to the Registrar:
(x) to register the transfer of such Definitive Preferred
Securities; or
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(y) to exchange such Definitive Preferred Securities
which became mutilated, destroyed, defaced, stolen or lost, for an
equal liquidation amount of Definitive Preferred Securities,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Preferred Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Property Trustee and the Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
(b) Transfer of a Definitive Preferred Security for a Beneficial
Interest in a Global Preferred Security. Upon receipt by the Property Trustee of
a Definitive Preferred Security, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Property Trustee, together
with written instructions directing the Property Trustee to make, or to direct
the Clearing Agency to make, an adjustment on its books and records with respect
to the Global Preferred Security to reflect an increase in the Liquidation
Amount of the Preferred Securities represented by such Global Preferred
Security, then the Property Trustee shall cancel such Definitive Preferred
Security and cause, or direct the Clearing Agency to cause, the aggregate
Liquidation Amount of Preferred Securities represented by the appropriate Global
Preferred Security to be increased accordingly. If no Global Preferred
Securities are then outstanding, an Administrative Trustee shall execute on
behalf of the Trust and the Property Trustee shall authenticate, upon written
order of any Administrative Trustee, a Global Preferred Security representing an
appropriate Liquidation Amount of Preferred Securities.
(c) Transfer and Exchange of Global Preferred Securities. Subject
to Section 9.2(d), the transfer and exchange of Global Preferred Securities or
beneficial interests therein shall be effected through the Clearing Agency in
accordance with this Agreement and the procedures of the Clearing Agency
therefor.
(d) Transfer of a Beneficial Interest in a Global Preferred
Security for a Definitive Preferred Security.
(i) A Global Preferred Security deposited with the
Clearing Agency or with the Property Trustee as custodian for the
Clearing Agency pursuant to Section 7.3 shall be transferred to the
beneficial owners thereof in the form of Definitive Preferred
Securities only if such transfer complies with Section 9.2(c) and (1)
the Clearing Agency notifies the Trust that it is unwilling or unable
to continue as Clearing Agency for such Global Preferred Security or if
at any time such Clearing Agency ceases to be a "clearing agency"
registered under the Exchange Act and, in each case, a clearing agency
is not appointed by the Sponsor within 90 days of receipt of such
notice or of becoming aware of such condition, (2) a Default or an
Event of Default has occurred and is continuing or (3) the Trust at its
sole discretion elects to cause the issuance of Definitive Preferred
Securities.
(ii) Any Global Preferred Security that is transferable to
the beneficial owners thereof in the form of Definitive Preferred
Securities pursuant to this Section 9.2(d) shall be surrendered by the
Clearing Agency to the Property Trustee located in the Borough of
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Manhattan, The City of New York, to be so transferred, in whole or from
time to time in part, without charge, and the Property Trustee shall
authenticate and make available for delivery, upon such transfer of
each portion of such Global Preferred Security, an equal aggregate
Liquidation Amount of Securities of authorized denominations in the
form of Definitive Preferred Securities. Any portion of a Global
Preferred Security transferred pursuant to this Section shall be
registered in such names as the Clearing Agency shall direct.
In the event of the occurrence of any of the events specified in clause
(i) above, the Administrative Trustees will promptly make available to the
Property Trustee a reasonable supply of Definitive Preferred Securities in fully
registered form without Distribution coupons.
(e) Restrictions on Transfer and Exchange of Global Preferred
Securities. Notwithstanding any other provisions of this Agreement (other than
the provisions set forth in subsection (d) of this Section 9.2), a Global
Preferred Security may not be transferred as a whole except by the Clearing
Agency to a nominee of the Clearing Agency or another nominee of the Clearing
Agency or by the Clearing Agency or any such nominee to a successor Clearing
Agency or a nominee of such successor Clearing Agency.
(f) Cancellation or Adjustment of Global Preferred Security. At
such time as all beneficial interests in a Global Preferred Security have either
been exchanged for Definitive Preferred Securities to the extent permitted by
this Agreement or redeemed, repurchased or canceled in accordance with the terms
of this Agreement, such Global Preferred Security shall be returned to the
Clearing Agency for cancellation or retained and canceled by the Property
Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Preferred Security is exchanged for Definitive Preferred Securities,
Preferred Securities represented by such Global Preferred Security shall be
reduced and an adjustment shall be made on the books and records of the Property
Trustee (if it is then the custodian for such Global Preferred Security) with
respect to such Global Preferred Security, by the Property Trustee or the
Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of
Preferred Securities.
(i) To permit registrations of transfers and exchanges,
an Administrative Trustee shall execute and the Property Trustee shall
authenticate Definitive Preferred Securities and Global Preferred
Securities at the Registrar's request in accordance with the terms of
this Agreement.
(ii) Registrations of transfers or exchanges will be
effected without charge, but only upon payment (with such indemnity as
the Trust or the Sponsor may require) in respect of any tax or other
governmental charge that may be imposed in relation to it.
(iii) The Registrar shall not be required to register the
transfer of or exchange of: (a) Preferred Securities during a period
beginning at the opening of business 15 days before the day of mailing
of a notice of redemption or any notice of selection of Preferred
Securities for redemption and ending at the close of business on the
day of such mailing;
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or (b) any Preferred Security so selected for redemption in whole or in
part, except the unredeemed portion of any Preferred Security being
redeemed in part.
(iv) All Preferred Securities issued upon any registration
of transfer or exchange pursuant to the terms of this Agreement shall
evidence the same security and shall be entitled to the same benefits
under this Agreement as the Preferred Securities surrendered upon such
registration of transfer or exchange.
(h) No Obligation of the Property Trustee.
(i) The Property Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Preferred Security, a
Participant in the Clearing Agency or other Person with respect to the
accuracy of the records of the Clearing Agency or its nominee or of any
Participant thereof, with respect to any ownership interest in the
Preferred Securities or with respect to the delivery to any
Participant, beneficial owner or other Person (other than the Clearing
Agency) of any notice (including any notice of redemption) or the
payment of any amount, under or with respect to such Preferred
Securities. All notices and communications to be given to the Holders
and all payments to be made to Holders under the Preferred Securities
shall be given or made only to or upon the order of the Holders (which
shall be the Clearing Agency or its nominee in the case of a Global
Preferred Security). The rights of beneficial owners in any Global
Preferred Security shall be exercised only through the Clearing Agency
subject to the applicable rules and procedures of the Clearing Agency.
The Property Trustee may conclusively rely and shall be fully protected
in relying upon information furnished by the Clearing Agency or any
agent thereof with respect to its Participants and any beneficial
owners.
(ii) The Property Trustee and Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Agreement or under
applicable law with respect to any transfer of any interest in any
Preferred Security (including any transfers between or among Clearing
Agency Participants or beneficial owners in any Global Preferred
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if
and when expressly required by, the terms of this Agreement, and to
examine the same to determine substantial compliance as to form with
the express requirements hereof.
SECTION 9.3 Deemed Security Holders.
The Trust, the Trustees, the Registrar and the Paying Agent
may treat the Person in whose name any Security shall be registered on the books
and records of the Trust as the sole owner and Holder of such Security for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Security on the part of any Person other than such Holder,
regardless of any notice to the contrary.
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SECTION 9.4 Book Entry Interests.
Global Preferred Securities shall initially be registered on
the books and records of the Trust in the name of Cede & Co., the nominee of the
Clearing Agency, and no Preferred Security Beneficial Owner will receive a
definitive Preferred Security Certificate representing such Preferred Security
Beneficial Owner's interests in such Global Preferred Securities, except as
provided in Section 9.2. Unless and until Definitive Preferred Securities have
been issued to the Preferred Security Beneficial Owners pursuant to Section 9.2:
(a) the provisions of this Section 9.4 shall be in full
force and effect;
(b) the Trust and the Trustees shall be entitled to deal
with the Clearing Agency for all purposes of this Agreement (including
the payment of Distributions on the Global Preferred Securities and
receiving approvals, votes or consents hereunder) as the Holder of the
Preferred Securities and the sole holder of the Global Certificates and
shall have no obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Agreement, the provisions of
this Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial
Owners shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing Agency and/or the
Participants, including receiving and transmitting payments of
Distributions on the Global Certificates to such Participants. DTC will
make book entry transfers among the Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred
Security Holders is required to be given by a Trustee under this Agreement, such
Trustee shall give all such notices and communications specified herein to be
given to the Holders of Global Preferred Securities to the Clearing Agency and
shall have no notice obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the
Administrative Trustees may, in their sole discretion, appoint a successor
Clearing Agency with respect to the Preferred Securities.
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ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Agreement, the
Securities Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of
Securities (in its capacity as Holder) any deficit upon dissolution of
the Trust or otherwise.
(b) The Sponsor shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to ss. 3803(a) of the Business Trust Act, the Holders
of the Preferred Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Agreement or by law,
except that this provision shall not be deemed to modify Section 3.9(b).
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Agreement shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Agreement. The
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provisions of this Agreement, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between any Covered Person and any Indemnified Person; or
(ii) whenever this Agreement or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Agreement or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Agreement an Indemnified Person is permitted
or required to make a decision:
(i) in its "sole discretion" or "discretion" or under a
grant of similar authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust or any
other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express standard
and shall not be subject to any other or different standard imposed by
this Agreement or by applicable law.
SECTION 10.4 Indemnification.
(a) (i) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including reasonable attorneys'
fees and expenses), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action,
suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
the Trust, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was
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unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including reasonable attorneys'
fees and expenses) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter
as to which such Company Indemnified Person shall have been adjudged to
be liable to the Trust unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such
Company Indemnified Person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or such other
court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall
be successful on the merits or otherwise (including dismissal of an
action without prejudice or the settlement of an action without
admission of liability) in defense of any action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a), or in
defense of any claim, issue or matter therein, he shall be indemnified,
to the full extent permitted by law, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of
this Section 10.4(a) (unless ordered by a court) shall be made by the
Sponsor only as authorized in the specific case upon a determination
that indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1)
by the Administrative Trustees by a majority vote of a Quorum
consisting of such Administrative Trustees who were not parties to such
action, suit or proceeding, (2) if such a Quorum is not obtainable, or,
even if obtainable, if a Quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a written opinion,
or (3) by the Common Security Holder of the Trust.
(v) Expenses (including reasonable attorneys' fees and
expenses) incurred by a Company Indemnified Person in defending a
civil, criminal, administrative or investigative action, suit or
proceeding referred to in paragraphs (i) and (ii) of this Section
10.4(a) shall be paid by the Sponsor in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such
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Company Indemnified Person to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Sponsor
as authorized in this Section 10.4(a). Notwithstanding the foregoing,
no advance shall be made by the Sponsor if a determination is
reasonably and promptly made (1) by the Administrative Trustees by a
majority vote of a Quorum of disinterested Administrative Trustees, (2)
if such a Quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Administrative Trustees so directs, by independent
legal counsel in a written opinion or (3) by the Common Security Holder
of the Trust, that, based upon the facts known to the Administrative
Trustees, counsel or the Common Security Holder at the time such
determination is made, such Company Indemnified Person acted in bad
faith or in a manner that such Person did not believe to be in or not
opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In no event
shall any advance be made in instances where the Administrative
Trustees, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached his duty to
the Trust or its Common or Preferred Security Holders.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this
Section 10.4(a) shall not be deemed exclusive of any other rights to
which those seeking indemnification and advancement of expenses may be
entitled under any agreement, vote of stockholders or disinterested
directors of the Sponsor or Preferred Security Holders of the Trust or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office. All rights to
indemnification under this Section 10.4(a) shall be deemed to be
provided by a contract between the Sponsor and each Company Indemnified
Person who serves in such capacity at any time while this Section
10.4(a) is in effect. Any repeal or modification of this Section
10.4(a) shall not affect any rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any Person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or
not the Sponsor would have the power to indemnify him against such
liability under the provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 10.4(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a) shall, unless
otherwise provided when authorized or ratified, continue as to a Person
who has ceased to be a Company Indemnified Person and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
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(b) To the fullest extent permitted by law, the Sponsor agrees to
indemnify the (i) Property Trustee, (ii) the Delaware Trustee, (iii) any
Affiliate of the Property Trustee and the Delaware Trustee, and (iv) any
officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Property Trustee and the
Delaware Trustee (each of the Persons in (i) through (iv) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any and all loss, liability, damage, claim or expense
including taxes (other than taxes based on the income of such Fiduciary
Indemnified Person) incurred without gross negligence (or, in the case of the
Property Trustee, negligence), willful misconduct or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or investigating
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. With respect to the Property Trustee, this
provision shall not be deemed to modify Section 3.9(b) or the Trust Indenture
Act. The obligation to indemnify as set forth in this Section 10.4(b) shall
survive the resignation or removal of the Property Trustee or the Delaware
Trustee and the satisfaction and discharge of this Agreement.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee (subject to Section 5.3(c)) may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Securities shall have no rights by virtue of this
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. No Covered
Person, the Sponsor, the Delaware Trustee, or the Property Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor, the Delaware
Trustee and the Property Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Covered Person, the
Delaware Trustee and the Property Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
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SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrative Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States Federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Administrative Trustees.
(b) The Administrative Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days after the end of
each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statements of income or loss.
(c) The Administrative Trustees shall cause to be duly prepared
and delivered to each of the Holders of Securities, any annual United States
Federal income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Administrative Trustees shall
endeavor to deliver all such information statements within 30 days after the end
of each Fiscal Year of the Trust.
(d) The Administrative Trustees shall cause to be duly prepared
and filed with the appropriate taxing authority, an annual United States Federal
income tax return, on a Form 1041 or such other form required by United States
Federal income tax law, and any other annual income tax returns required to be
filed by the Administrative Trustees on behalf of the Trust with any state or
local taxing authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall
be deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Administrative Trustees; provided, however,
that the Property Trustee shall designate the signatories for the Property
Trustee Account.
SECTION 11.4 Withholding.
The Trust and the Administrative Trustees shall comply with
all withholding requirements under United States Federal, state and local law.
The Trust shall request, and the Holders shall provide to the Trust, such forms
or certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be
requested by the Administrative Trustees to assist them in determining the
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extent of, and in fulfilling, the Trust's withholding obligations. The
Administrative Trustees shall file required forms with applicable jurisdictions
and, unless an exemption from withholding is properly established by a Holder,
shall remit amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to withhold and pay over
any amounts to any authority with respect to Distributions or allocations to any
Holder, the amount withheld shall be deemed to be a Distribution in the amount
of the withholding to the Holder. In the event of any claim of excess
withholding, Holders shall be limited to an action against the applicable
jurisdiction. If the amount required to be withheld was not withheld from actual
Distributions made, the Trust may reduce subsequent Distributions by the amount
of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Agreement or by any
applicable terms of the Securities (including as set forth in Section 7 of Annex
I hereto), this Agreement may only be amended by a written instrument approved
and executed by:
(i) the Sponsor and the Administrative Trustees (or, if
there are more than two Administrative Trustees, a majority of the
Administrative Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee.
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate
from each of the Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Agreement (including the terms
of the Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Agreement (including the terms
of the Securities); and
(B) an Opinion of Counsel that such amendment is
permitted by, and conforms to, the terms of this Agreement
(including the terms of the Securities)
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and that all conditions precedent to the execution and
delivery of such amendment have been satisfied; and
(iii) to the extent the result of such amendment would:
(A) cause the Trust to fail to be classified for
purposes of United States Federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the
powers of the Property Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered under the
Investment Company Act.
(c) At such time after the Trust has issued any Securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of the Securities may be effected only
with such additional requirements as may be set forth in the terms of such
Securities; provided, however, that, without the consent of each Holder of the
Securities, this Agreement may not be amended to (i) change the Distribution
rate (or manner of calculation of the Distribution rate), amount, timing or
currency or otherwise adversely affect the method of any required payment, (ii)
change the purposes of the Trust, (iii) authorize the issuance of any additional
beneficial interests in the Trust, (iv) change the redemption provisions, (v)
change the conditions precedent for the Sponsor to elect to dissolve the Trust
and distribute the Debentures to the Holders of the Securities, (vi) change the
Liquidation Distribution or other provisions relating to the distribution of
amounts payable upon the dissolution and liquidation of the Trust, (vii) affect
the limited liability of any Holder of the Securities or (viii) restrict the
right of a Holder of the Securities to institute suit for the enforcement of any
required payment on or after the due date therefor (or in the case of
redemption, on the Redemption Date).
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities.
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under
Article V to increase or decrease the number of, and to appoint and remove,
Trustees shall not be amended without the consent of the Holders of a Majority
in Liquidation Amount of the Common Securities.
(g) Notwithstanding Section 12.1(c), this Agreement may be amended
by the Sponsor and the Trustees without the consent of the Holders of the
Securities to:
(i) cure any ambiguity, correct or supplement any
provision in this Agreement that may be inconsistent with any other
provision of this Agreement or make any other
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provisions with respect to matters or questions arising under this
Agreement not inconsistent with any other provisions of this Agreement;
(ii) modify, eliminate or add to any provisions of this
Agreement to such extent as shall be necessary to ensure that the Trust
will be classified for United States Federal income tax purposes as a
grantor trust at all times that any Securities are outstanding or to
ensure that the Trust will not be required to register as an Investment
Company under the Investment Company Act;
provided, however, that, in each case, such action shall not adversely affect in
any material respect the interests of the Holders of the Securities, and any
such amendments of this Agreement shall become effective when notice thereof is
given to the Holders of the Securities.
SECTION 12.2 Meetings of the Holders of Securities; Action by Written
Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Administrative Trustees (or as provided in the terms
of the Securities) to consider and act on any matter on which Holders of such
class of Securities are entitled to act under the terms of this Agreement, the
terms of the Securities or the rules of any stock exchange or quotation system
or market on which the Preferred Securities are listed or admitted for trading.
The Administrative Trustees shall call a meeting of the Holders of such class if
directed to do so by the Holders of at least 10% in Liquidation Amount of the
Securities of such class. Such direction shall be given by delivering to the
Administrative Trustees one or more notices in a writing stating that the
signing Holders of Securities wish to call a meeting and indicating the general
or specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the security certificates
held by the Holders of Securities exercising the right to call a meeting and
only those Securities specified shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of this
paragraph has been met.
(b) Whenever a vote, consent or approval of the Holders of
Securities is permitted or required under this Agreement or the rules of any
stock exchange or quotation system or market on which the Preferred Securities
are listed or admitted for trading, such vote, consent or approval may be given
at a meeting of the Holders of Securities. Any action that may be taken at a
meeting of the Holders of Securities may be taken without a meeting if a consent
in writing setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in Liquidation
Amount that would be necessary to authorize or take such action at a meeting at
which all Holders of Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall be given
to the Holders of Securities entitled to vote who have not consented in writing.
(c) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least seven
days and not more than 60 days before the date of such meeting. The
Administrative Trustees may specify that any written ballot
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submitted to the Security Holders for the purpose of taking any action
without a meeting shall be returned to the Trust within the time
specified by the Administrative Trustees;
(ii) each Holder of a Security may authorize any Person to
act for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of eleven months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure
of the Holder of Securities executing it. Except as otherwise provided
herein, all matters relating to the giving, voting or validity of
proxies shall be governed by the General Corporation Law of the State
of Delaware relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and the Holders
of the Securities were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall
be conducted by the Administrative Trustees or by such other Person
that the Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Agreement, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange or quotation system or market on which the
Preferred Securities are then listed or trading, otherwise provides,
the Administrative Trustees, in their sole discretion, shall establish
all other provisions relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any meeting at which
any matter is to be voted on by any Holders of Securities, waiver of
any such notice, action by consent without a meeting, the establishment
of a record date, quorum requirements, voting in person or by proxy or
any other matter with respect to the exercise of any such right to
vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Agreement, and
each Successor Property Trustee represents and warrants, as applicable, to the
Trust and the Sponsor at the time of the Successor Property Trustee's acceptance
of its appointment as Property Trustee that:
(a) the Property Trustee is a banking corporation, a national
banking association or a bank or trust company, duly organized, validly existing
and in good standing under the laws of the United States or a State of the
United States, as the case may be, with corporate power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of,
this Agreement;
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(b) the execution, delivery and performance by the Property
Trustee of the Agreement have been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Agreement has been duly executed
and delivered by the Property Trustee under applicable law and constitutes a
legal, valid and binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this Agreement by
the Property Trustee do not conflict with or constitute a breach of the charter
or by-laws of the Property Trustee; and
(d) no consent, approval or authorization of, or registration with
or notice to, any federal or state banking authority is required for the
execution, delivery or performance by the Property Trustee of this Agreement,
which consent, approval, authorization or registration has not been obtained.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Agreement, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee is a banking corporation, a national
banking association or a bank or trust company, duly organized, validly existing
and in good standing under the laws of the United States or the State of
Delaware, as the case may be, with corporate power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Agreement;
(b) the execution, delivery and performance by the Delaware
Trustee of this Agreement have been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Agreement has been duly
executed and delivered by the Delaware Trustee under Delaware law and
constitutes a legal, valid and binding obligation of the Delaware Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this Agreement by
the Delaware Trustee do not conflict with or constitute a breach of the charter
or by-laws of the Delaware Trustee;
(d) no consent, approval or authorization of, or registration with
or notice to, any Federal or Delaware banking authority governing the trust
powers of the Delaware Trustee is
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required for the execution, delivery or performance by the Delaware Trustee of
this Agreement; and
(e) the Delaware Trustee is a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware, and is a Person that
satisfies for the Trust Section 3807(a) of the Business Trust Act.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Agreement shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied (with the original to follow by first class mail) or mailed by first
class mail, as follows:
(a) if given to the Trust, in care of the Administrative Trustees
at the Trust's mailing address set forth below (or such other address as the
Trust may give notice of to the Holders of the Securities):
Cox Radio Trust [___]
c/o Cox Radio, Inc.
1400 Lake Hearn Drive
Atlanta, Georgia 30319
Attention: Richard Jacobson
Telephone: (404) 843-5111
Telecopier: (404) 847-5142
With a copy to:
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, NW
Suite 800
Washington, D.C. 20036
Facsimile No.: (202) 776-2222
Attention: Stuart A. Sheldon
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of to the
Holders of the Securities):
The Bank of New York (Delaware)
23 White Clay Center
Route 273
Newark, Delaware 19711
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Telephone: (212) 815-5758
Telecopier: (212) 815-5915
(c) if given to the Property Trustee, at the Property Trustee's
mailing address set forth below (or such other address as the Property Trustee
may give notice of to the Holders of the Securities):
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: (212) 815-5758
Telecopier: (212) 815-5915
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
Cox Radio, Inc.
1400 Lake Hearn Drive
Atlanta, Georgia 30319
Attention: Richard Jacobson
Telephone: (404) 843-5111
Telecopier: (404) 847-5142
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
This Agreement and the rights of the parties hereunder shall
be governed by and construed in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws, except that the rights, limitations of
rights, obligations, duties and immunities of the Property Trustee shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States Federal income tax purposes as a grantor trust. The
provisions of this Agreement shall be interpreted to further this intention of
the parties.
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SECTION 14.4 Headings.
The Table of Contents, Cross-Reference Table and Headings
contained in this Agreement are inserted for convenience of reference only and
do not affect the interpretation of this Agreement or any provision hereof.
SECTION 14.5 Successors and Assigns.
Whenever in this Agreement any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Agreement by the Sponsor and
the Trustees shall bind and inure to the benefit of their respective successors
and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Agreement, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 14.7 Counterparts.
This Agreement may contain more than one counterpart of the
signature page and this Agreement may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned have caused this Amended
and Restated Trust Agreement to be executed as of the day and year first above
written.
Robert F. Neil, as Administrative Trustee of the
Trust
------------------------------------------------
Maritza C. Pichon, as Administrative Trustee of
the Trust
------------------------------------------------
Richard Jacobson, as Administrative Trustee of
the Trust
------------------------------------------------
THE BANK OF NEW YORK (DELAWARE), as
Delaware Trustee of the Trust
By:
---------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Property Trustee
of the Trust
By:
---------------------------------------------
Name:
Title:
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Cox RADIO, Inc.,
as Sponsor of the Trust
By:
---------------------------------------------
Name:
Title:
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ANNEX I
TERMS OF
______% PREFERRED SECURITIES
________% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Trust
Agreement of the Trust, dated as of __________ ___, _____ (as amended from time
to time, the "Agreement"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities and the
Common Securities (collectively, the "Securities") are set forth below (each
capitalized term used but not defined herein has the meaning set forth in the
Agreement or, if not defined in such Agreement, as defined in the Indenture):
1. Designation and Number.
(a) Preferred Securities. Up to ___________ Preferred
Securities of the Trust, with an aggregate liquidation amount with respect to
the assets of the Trust of ________________________ dollars
($_____________________), and with a Liquidation Amount with respect to the
assets of the Trust of $ per security, are hereby designated for the purposes of
identification only as "_____% Preferred Securities" (the "Preferred
Securities"). The certificates evidencing the Preferred Securities shall be
substantially in the form of Exhibit A-1 to the Agreement, with such changes and
additions thereto or deletions therefrom as may be required by ordinary usage,
custom or practice or to conform to the rules of any stock exchange or quotation
system on which the Preferred Securities are listed or quoted.
(b) Common Securities. Up to ____________ Common
Securities of the Trust with an aggregate Liquidation Amount with respect to the
assets of the Trust of ________________________________dollars
($________________), and with a Liquidation Amount with respect to the assets of
the Trust of $ per security, are hereby designated for the purposes of
identification only as "_____% Common Securities" (the "Common Securities"). The
certificates evidencing the Common Securities shall be substantially in the form
of Exhibit A-2 to the Agreement, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice.
2. Distributions.
(a) Distributions on each Security will be payable at a
rate per annum of ____ % (the "Distribution Rate") of the liquidation amount of
$ per Security (the "Liquidation Amount"), such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one quarterly period will bear additional distributions
thereon compounded quarterly at the applicable periodic Distribution Rate (to
the extent permitted by applicable law). The term "Distributions", as used
herein, includes any such additional distributions unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds legally available therefor.
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(b) Distributions on the Securities will be cumulative,
will accumulate from the most recent date to which Distributions have been paid
or, if no Distributions have been paid, from and including __________ ___,
_____, to but excluding the related Distribution Date or Redemption Date (each
defined below) and will be payable quarterly in arrears on __________,
____________, _____________ and ____________of each year, commencing __________
___, _____ (each, a "Distribution Date"), except as otherwise described below.
The amount of Distributions payable for any Distribution Period will be computed
on the basis of a 360-day year consisting of twelve 30-day months. The
distributions payable for any partial period will be computed on the basis of
the actual number of days elapsed in such period. "Distribution Period" means
the period from and including the immediately preceding Distribution Date (or
__________ ___, _____ in the case of the first Distribution Period) to but
excluding the applicable Distribution Date or Redemption Date. If a Distribution
Date is not a Business Day, then such Distribution will be made on the next
succeeding Business Day. However, if the next succeeding Business Day is in the
next succeeding calendar year, such distribution will be made on the immediately
preceding Business Day.
As long as no Event of Default has occurred and is continuing
under the Indenture, the Debenture Issuer has the right under the Indenture to
defer payments of interest on the Debentures by extending the interest payment
period at any time and from time to time for a period not exceeding 20
consecutive quarterly periods (each quarterly period as to which quarterly
interest payments have been deferred is referred to herein as an "Extension
Period"), provided that an Extension Period must end on an Interest Payment Date
for the Debentures and may not extend beyond the Stated Maturity Date or date of
earlier redemption for the Debentures. As a consequence of such deferral,
Distributions on the Securities will also be deferred during an Extension
Period. Despite such deferral, quarterly Distributions will continue to
accumulate with additional interest thereon (to the extent permitted by
applicable law but not at a rate greater than the rate at which interest is then
accruing on the Debentures) at the Distribution Rate then in effect, compounded
quarterly during any Extension Period. Prior to the termination of an Extension
Period, the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that an Extension Period, together
with all such previous and further extensions, may not exceed 20 consecutive
quarterly periods, must end on an Interest Payment Date for the Debentures and
may not extend beyond the Stated Maturity Date or date of earlier redemption for
the Debentures. At the end of an Extension Period, all accumulated and unpaid
Distributions (but only to the extent payments are made in respect of the
Debentures held by the Property Trustee and to the extent the Property Trustee
has funds legally available therefor) will be payable to the Holders as they
appear on the books and records of the Trust on the record date immediately
preceding the end of the Extension Period. Upon the termination of any Extension
Period (or any extension thereof) and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the foregoing
requirements.
(c) Distributions on a Distribution Date will be payable
to the Holders thereof as they appear on the books and records of the Trust on
the day immediately preceding such Distribution Date. If the Preferred
Securities are ever issued in the form of Definitive Preferred Securities, the
record date for the payment of Distributions shall be the 15th day of the
calendar month in which the Distribution Date occurs, even if that day is not a
Business Day. The
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relevant record dates for the Common Securities shall be the same as the record
dates for the Preferred Securities. Distributions payable on any Securities that
are not punctually paid or duly provided for on any Distribution Date, as a
result of the Debenture Issuer having failed to make a payment under the
Debentures, will cease to be payable to the Holder on the relevant record date,
and such defaulted Distributions will instead be payable to the Person in whose
name such Securities are registered on the Special Record Date or other
specified date determined in accordance with the Indenture.
(d) In the event that there is any money or other property held by
or for the Trust that is not accounted for hereunder, such property shall be
distributed on a Pro Rata (as defined herein) basis among the Holders of the
Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any dissolution of the Trust, the Trust shall be
liquidated by the Administrative Trustees as expeditiously as the Administrative
Trustees determine to be possible by distributing, after satisfaction (or
reasonable provision for satisfaction) of liabilities to creditors of the Trust
as provided by applicable law, to the Holders of the Securities a Like Amount
(as defined below) of the Debentures, unless such distribution is determined by
the Property Trustee not to be practicable, in which event such Holders will be
entitled to receive out of the assets of the Trust legally available for
distribution to Holders, after satisfaction (or reasonable provision for
satisfaction) of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the aggregate of the Liquidation Amount of $ per
Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount is referred to herein as the "Liquidation Distribution").
"Like Amount" means (i) with respect to a redemption of the Securities,
Securities having a Liquidation Amount equal to the principal amount of
Debentures to be paid in accordance with their terms and (ii) with respect to a
distribution of Debentures upon the dissolution of the Trust, Debentures having
a principal amount equal to the Liquidation Amount of the Securities of the
Holder to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets legally available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in whole or in
part, at stated maturity or date of earlier redemption (either at the option of
the Debenture Issuer or pursuant to a Special Event, as described below), the
proceeds from such repayment shall be simultaneously applied by the Property
Trustee to redeem a Like Amount of the Securities at a redemption price equal to
(i) in the case of the repayment of the Debentures at stated maturity, the
Maturity Redemption Price (as defined below), (ii) in the case of the optional
redemption of the Debentures upon the occurrence, prior to ______________, and
continuation of a Special Event, the Special Event Redemption Price (as defined
below) and (iii) in the case of the optional
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redemption of the Debentures other than as a result of the occurrence and
continuance of a Special Event, the Optional Redemption Price (as defined
below). The Maturity Redemption Price, the Special Event Redemption Price and
the Optional Redemption Price are referred to collectively as the "Redemption
Price" and the date fixed for redemption of the Securities is referred to herein
as the "Redemption Date". Holders will be given not less than 30 nor more than
60 days' prior written notice of such redemption. Any redemption of Securities
shall be made, and the applicable Redemption Price shall be payable, on the
Redemption Date, and only to the extent that the Trust has funds legally
available for the payment thereof.
(b) (i) The "Maturity Redemption Price" shall mean a
price equal to 100% of the Liquidation Amount of the Securities to be redeemed
plus accumulated and unpaid Distributions thereon, if any, to the date of
redemption.
(ii) In the case of an optional redemption other than as a result
of the occurrence and continuance of a Special Event, if fewer than all the
outstanding Securities are to be so redeemed, the Common Securities and the
Preferred Securities will be redeemed on a Pro Rata basis and the Preferred
Securities to be redeemed will be determined as described in Section 4(f)(ii)
below. Upon the entry of an order for the dissolution of the Trust by a court of
competent jurisdiction, the Debentures thereafter will be subject to optional
repayment, in whole, but not in part, on or after ____________________.
The Debenture Issuer shall have the right (subject to the conditions in
the Indenture) to redeem the Debentures in whole or in part at any time on or
after ____________________, and, simultaneous with such redemption, to cause a
Like Amount of the Securities to be redeemed by the Trust at the Optional
Redemption Price on a Pro Rata basis. "Optional Redemption Price" shall mean a
price equal to 100% of the Liquidation Amount of Securities to be redeemed plus
accumulated and unpaid Distributions thereon, if any, to the date of redemption.
(c) If at any time a Special Event occurs prior to
_______________ and is continuing, the Debenture Issuer shall have the right
(subject to the conditions set forth in the Indenture) to redeem the Debentures
in whole, but not in part, within the 90 days following the occurrence of such
Special Event (the "90 Day Period"), and, simultaneous with such redemption, to
cause a Like Amount of the Securities to be redeemed by the Trust at the Special
Event Redemption Price on a Pro Rata basis.
"Investment Company Act Event" means that the Trust has
received an opinion of counsel experienced in such matters to the effect that,
as a result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" under the Investment Company Act that is required to be registered
under this law, which change becomes effective on or after __________ ___,
_____.
"Tax Event" shall occur upon receipt by the Administrative Trustees and
the Debenture Issuer of an Opinion of Counsel from counsel experienced in such
matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or taxing
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authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of the Agreement, there is more than
an insubstantial risk that (i) the Trust is, or will be within 90 days of the
date of such opinion, subject to United States federal income tax with respect
to income received or accrued on the Debentures, (ii) the interest payable by
the Debenture Issuer on the Debentures is not, or within 90 days of the date of
such opinion will not be, deductible by the Debenture Issuer, in whole or in
part, for United States federal income tax purposes, or (iii) the Trust is, or
will be within 90 days of the date of such opinion, subject to more than a de
minimis amount of other taxes, duties or other governmental charges.
"Special Event" means a Tax Event or an Investment Company Event.
"Special Event Redemption Price" shall mean a price equal to 100% of
the Liquidation Amount of Securities to be redeemed plus accumulated and unpaid
Distributions thereon, if any, to the date of such redemption.
(d) On and from the date fixed by the Administrative
Trustees for any distribution of Debentures and liquidation of the Trust: (i)
the Securities will no longer be deemed to be outstanding; (ii) the Clearing
Agency or its nominee (or any successor Clearing Agency or its nominee), as the
Holder of the Preferred Securities, will receive a registered global certificate
or certificates representing the Debentures to be delivered upon such
distribution; and (iii) any certificates representing Securities not held by the
Clearing Agency or its nominee (or any successor Clearing Agency or its nominee)
will be deemed to represent beneficial interests in Debentures until such
certificates are presented to the Debenture Issuer or its agent for transfer or
reissue.
(e) The Trust may not redeem fewer than all the
outstanding Securities unless all accumulated and unpaid Distributions have been
paid on all Securities for all Distribution periods terminating on or before the
Redemption Date.
(f) The procedure with respect to redemptions or
distributions of Debentures shall be as follows:
(i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice") will be given by an Administrative
Trustee on behalf of the Trust by mail to each Holder of Securities to
be redeemed or exchanged not fewer than 30 nor more than 60 days before
the date fixed for redemption or exchange thereof which, in the case of
a redemption, will be the date fixed for redemption of the Debentures.
For purposes of the calculation of the date of redemption or exchange
and the dates on which notices are given pursuant to this Section
4(f)(i), a Redemption/Distribution Notice shall be deemed to be given
on the day such notice is first mailed by first-class mail, postage
prepaid, to Holders of Securities. Each Redemption/Distribution Notice
shall be addressed to the Holders of Securities at the address of each
such Holder appearing in the books and records of the Trust. No defect
in the Redemption/Distribution Notice or in the mailing of either
thereof with respect to
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any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed shall be
redeemed on a Pro Rata basis from each Holder of Preferred Securities,
it being understood that, in respect of Preferred Securities registered
in the name of and held of record by the Clearing Agency or its nominee
(or any successor Clearing Agency or its nominee) or any nominee, the
distribution of the proceeds of such redemption will be made to the
Clearing Agency and disbursed by such Clearing Agency in accordance
with the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives
a Redemption/Distribution Notice (which notice will be irrevocable),
then (A) with respect to Global Preferred Securities representing
Preferred Securities issued in book-entry form, by 12:00 noon, New York
City time, on the Redemption Date, provided that the Debenture Issuer
has paid the Property Trustee a sufficient amount of cash in connection
with the related redemption or maturity of the Debentures by 10:00
a.m., New York City time, on the stated maturity date or the date of
earlier redemption, as the case requires, the Property Trustee will
deposit irrevocably with the Clearing Agency or its nominee (or
successor Clearing Agency or its nominee) funds sufficient to pay the
applicable Redemption Price with respect to such Preferred Securities
and will give the Clearing Agency irrevocable instructions and
authority to pay the Redemption Price to the relevant Participants, and
(B) with respect to Definitive Preferred Securities and Common
Securities, provided that the Debenture Issuer has paid the Property
Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Property Trustee will pay
the relevant Redemption Price to the Holders of such Securities by
check mailed to the address of such Holder appearing on the books and
records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds
deposited as required, then immediately prior to the close of business
on the date of such deposit, or on the Redemption Date, as applicable,
Distributions will cease to accumulate on the Securities so called for
redemption and all rights of Holders of such Securities so called for
redemption will cease, except the right of the Holders of such
Securities to receive the Redemption Price, but without interest on
such Redemption Price, and such Securities shall cease to be
outstanding.
(iv) Payment of accumulated and unpaid Distributions on
the Redemption Date will be subject to the rights of Holders of
Securities on the close of business on a record date in respect of a
Distribution Date occurring on or prior to such Redemption Date.
(v) Neither the Administrative Trustees nor the Trust
shall be required to register or cause to be registered the transfer of
(i) any Securities beginning on the opening of business 15 days before
the day of mailing of a notice of redemption or any notice of selection
of Securities for redemption or (ii) any Securities selected for
redemption except the unredeemed portion of any Security being
redeemed. If a Redemption Date is not a Business Day, then payment of
the Redemption Price payable on such date will be made on the next
succeeding Business Day, and no interest or other
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payment in respect of any such delay will accumulate for the period to
but excluding such Business Day. If payment of the Redemption Price in
respect of any Securities is improperly withheld or refused and not
paid either by the Property Trustee or by the Sponsor as guarantor
pursuant to the relevant Securities Guarantee, Distributions on such
Securities will continue to accumulate from the original redemption
date to the actual date of payment, in which case the actual payment
date will be considered the Redemption Date for purposes of calculating
the Redemption Price.
(vi) Redemption/Distribution Notices shall be sent by the
Property Trustee on behalf of the Trust to (A) in respect of the
Preferred Securities, the Clearing Agency or its nominee (or any
successor Clearing Agency or its nominee) if the Global Preferred
Securities have been issued or, if Definitive Preferred Securities have
been issued, to the Holders thereof, and (B) in respect of the Common
Securities, to the Sponsor.
(vii) Subject to the foregoing and applicable law
(including, without limitation, United States Federal securities laws
and banking laws), the Sponsor or any of its subsidiaries may at any
time and from time to time purchase outstanding Preferred Securities by
tender, in the open market or by private agreement.
5. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 5(b) and 7 and as
otherwise required by law or the Agreement, the Holders of the Preferred
Securities will have no voting rights.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding with respect to any remedy available to the Debenture
Trustee, or exercise any trust or power conferred upon the Debenture Trustee,
with respect to the Debentures, (ii) waive any past default that is waivable
under the Indenture, (iii) exercise any right to rescind or annul a declaration
of acceleration of the maturity of the principal of the Debentures, or (iv)
consent to any amendment, modification or termination of the Indenture or the
Debentures where such consent shall be required, without, in each case,
obtaining (1) the prior approval of the Holders of a Majority in Liquidation
Amount of all outstanding Preferred Securities; provided, however, that where a
consent under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior approval of each Holder of the Preferred Securities
and (2) an Opinion of Counsel delivered to the Trust from tax counsel
experienced in such matters to the effect that the Trust will not be classified
as an association taxable as corporation for United States Federal income tax
purposes on account of such action.
Notwithstanding anything to the contrary contained herein, if an Event
of Default under the Agreement has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay principal of or
premium, if any, or interest on the Debentures on the date such principal,
premium, if any, or interest is otherwise payable (or, in the case of
redemption, on the Redemption Date), then a Holder of Preferred Securities may
directly institute a proceeding against the Debenture Issuer for enforcement of
payment to such Holder of the principal of or premium, if any, or interest on a
Like Amount of Debentures (a "Direct Action") on or after the respective due
date specified in the Debentures. In connection with such a Direct
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Action, (i) the rights of the Common Securities Holder will be subordinated to
the rights of Holders of Preferred Securities with respect to payments made or
required to be made by the Debenture Issuer in such Direct Action and (ii) the
Debenture Issuer shall remain obligated to pay the principal of, premium, if
any, or interest on such Debentures, and the Debenture Issuer shall be
subrogated to the rights of such Holder of Preferred Securities to the extent of
any payment made by the Debenture Issuer to such Holder in such Direct Action.
Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities or pursuant to written
consent. The Property Trustees will cause a notice of any meeting at which
Holders of Preferred Securities are entitled to vote to be mailed to each Holder
of record of Preferred Securities. Each such notice will include a statement
setting forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
and (iii) instructions for the delivery of proxies.
No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities, or to
distribute the Debentures, in accordance with the Agreement and these terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b) and 7 as
otherwise required by law or the Agreement, the Holders of the Common Securities
will have no voting rights.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding with respect to any remedy available to the Debenture
Trustee, or exercise any trust or power conferred upon the Debenture Trustee,
with respect to the Debentures, (ii) waive any past default that is waivable
under the Indenture, (iii) exercise any right to rescind or annul a declaration
of acceleration of the maturity of the principal of the Debentures or (iv)
consent to any amendment, modification or termination of the Indenture or the
Debentures where such consent shall be required, without, in each case,
obtaining (1) the prior approval of the Holders of a Majority in Liquidation
Amount of all outstanding Common Securities; provided, however, that where a
consent under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior approval of the Common Securities Holder and (2) an
Opinion of Counsel delivered to the Trust from tax counsel experienced in such
matters to the effect that the Trust will not be classified as an association
taxable as a corporation for United States Federal income tax purposes on
account of such action.
Notwithstanding anything to the contrary contained herein, if an Event of
Default under the Agreement has occurred and is continuing and such event is
attributable to the failure of the
I-8
<PAGE> 74
Debenture Issuer to pay principal of or premium, if any, or interest on the
Debentures on the date such principal, premium, if any, or interest is otherwise
payable (or, in the case of redemption, on the Redemption Date), then a Holder
of Common Securities may institute a Direct Action against the Debenture Issuer
for enforcement of payment to such Holder of the principal of or premium, if
any, or interest on a Like Amount of Debentures on or after the respective due
date specified in the Debentures. In connection with such a Direct Action, (i)
the rights of the Common Securities Holder will be subordinated to the rights of
Holders of Preferred Securities with respect to payments made or required to be
made by the Debenture Issuer in such Direct Action and (ii) the Debenture Issuer
shall remain obligated to pay the principal of, premium, if any, or interest on
such Debentures, and the Debenture Issuer shall be subrogated to the rights of
such Holder of Preferred Securities to the extent of any payment made by the
Debenture Issuer to such Holder in such Direct Action.
Any approval or direction of Holder(s) of Common Securities may be
given at a separate meeting of Holder(s) of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities or pursuant to written
consent. The Administrative Trustees will cause a notice of any meeting at which
Holder(s) of Common Securities are entitled to vote to be mailed to each Holder
of record of Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holder(s) are entitled to
vote and (iii) instructions for the delivery of proxies.
No vote or consent of the Holder(s) of the Common Securities will be
required for the Trust to redeem and cancel Common Securities, or to distribute
the Debentures, in accordance with the Agreement and these terms of the
Securities.
7. Amendments to Agreement.
In addition to the requirements set out in Section 12.1 of the
Agreement, the Agreement may be amended from time to time by the Sponsor and the
Trustees with (i) the consent of Holders of a Majority in Liquidation Amount of
all outstanding Securities, and (ii) receipt by the Trustees of an opinion of
counsel experienced in such matters to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
will not affect the Trust's status as a grantor trust for United States Federal
income tax purposes or the Trust's exemption from status as an Investment
Company under the Investment Company Act; provided, however, that, without the
consent of each Holder of the Securities, the Agreement may not be amended to
(i) change the Distribution Rate (or manner of calculation of the Distribution
Rate), amount, timing or currency or otherwise adversely affect the method of
any required payment, (ii) change the purposes of the Trust, (iii) authorize the
issuance of any additional beneficial interests in the Trust, (iv) change the
redemption provisions, (v) change the conditions precedent for the Sponsor to
elect to dissolve the Trust and distribute the Debentures to the Holders of the
Securities, (vi) change the Liquidation Distribution or other provisions
relating to the distribution of amounts payable upon the dissolution and
liquidation of the Trust, (vii) affect the limited liability of any Holder of
the Securities or (viii) restrict the right of a Holder of the Securities to
institute suit for the enforcement of any required payment on or after the due
date therefor (or, in the case of redemption, on the Redemption Date).
I-9
<PAGE> 75
8. Pro Rata.
A reference herein to any payment, distribution or treatment as being
"Pro Rata" shall mean pro rata to each Holder of Securities according to the
aggregate Liquidation Amount of the Securities held by such Holder in relation
to the aggregate Liquidation Amount of all Securities outstanding unless, in
relation to a payment, an Event of Default under the Agreement has occurred and
is continuing, in which case any funds legally available to make such payment
shall be paid first to each Holder of the Preferred Securities pro rata
according to the aggregate Liquidation Amount of Preferred Securities held by
such Holder relative to the aggregate Liquidation Amount of all Preferred
Securities outstanding, and only after satisfaction of all amounts owed to the
Holders of the Preferred Securities, to each Holder of Common Securities pro
rata according to the aggregate Liquidation Amount of Common Securities held by
such Holder relative to the aggregate Liquidation Amount of all Common
Securities outstanding.
9. Ranking.
The Preferred Securities rank pari passu with the Common Securities and
payment thereon shall be made Pro Rata with the Common Securities, except that,
if an Event of Default under the Agreement occurs and is continuing, no payments
in respect of Distributions on, or payments upon liquidation, redemption or
otherwise with respect to, the Common Securities shall be made until the Holders
of the Preferred Securities shall be paid in full the Distributions, Redemption
Price, Liquidation Distribution and other payments to which they are entitled at
such time.
10. Acceptance of Securities Guarantees and Indenture.
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee, the Common Securities Guarantee and the Indenture, including the
subordination provisions therein.
11. No Preemptive Rights.
The Holders of the Securities shall have no preemptive or similar
rights (including the right to subscribe for any Option Preferred Securities of
the Trust).
12. Miscellaneous.
These terms constitute a part of the Agreement.
The Sponsor will provide a copy of the Agreement, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate)
and the Indenture (including any supplemental indenture) to a Holder without
charge on written request to the Sponsor at its principal place of business.
I-10
<PAGE> 76
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[IF THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY, INSERT:
THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY WITHIN THE MEANING OF THE
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITORY") OR A NOMINEE OF THE DEPOSITORY. THIS
PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE AGREEMENT AND NO TRANSFER OF THIS PREFERRED
SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY 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) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TO THE TRUST OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
<PAGE> 77
Certificate Number Number of Preferred
Securities
- ------------------- ----------------------------
CUSIP NO. __________
Certificate Evidencing Preferred Securities
of
COX RADIO TRUST [___]
______% Trust Originated Preferred Securities(SM)
(liquidation amount $ per Preferred Security)
COX RADIO TRUST [___], a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of __________ securities
of the Trust representing undivided beneficial interests in the assets of the
Trust designated as the _____% Trust Originated Preferred Securities
(liquidation amount $_______ per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer.
The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Trust Agreement of the Trust dated as of __________ ___, _____, as the
same may be amended from time to time (the "Agreement"), including the
designation of the terms of the Preferred Securities as set forth in Annex I to
the Agreement. Capitalized terms used but not defined herein shall have the
respective meanings given them in the Agreement. The Sponsor will provide a copy
of the Agreement, the Preferred Securities Guarantee and the Indenture to a
Holder without charge upon written request to the Trust at its principal place
of business.
Upon receipt of this certificate, the Holder is bound by the Agreement
and is entitled to the benefits thereunder and to the benefits of the Preferred
Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States Federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
This Preferred Securities Certificate shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to principles of conflict of laws.
A1-2
<PAGE> 78
IN WITNESS WHEREOF, the Trust has executed this certificate this.
Dated:
COX RADIO TRUST [___]
By:
--------------------------------
Name:
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Agreement.
Dated:
THE BANK OF NEW YORK,
as Property Trustee
By:
--------------------------------
Authorized Signatory
A1-3
<PAGE> 79
[FORM OF REVERSE OF PREFERRED SECURITY]
Distributions on this Preferred Security will be payable at a rate per
annum of _____ % (the "Distribution Rate") of the Liquidation Amount of $ per
Preferred Security (the "Liquidation Amount"), such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee.
Distributions not paid when due will themselves accumulate distributions at the
annual rate of _____% (to the extent permitted by law). The term
"Distributions", as used herein, includes any such additional distributions
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent the Property Trustee has funds on hand legally available therefor.
Distributions on the Preferred Securities will be cumulative, will
accumulate from and including the most recent date on which Distributions have
been paid or, if no Distributions have been paid, from and including the date of
issuance, to but excluding the related Distribution Date (as defined herein) or
any date fixed for redemption (a "Redemption Date"), and will be payable
quarterly in arrears on ___________, ____________, ________________ and
______________ of each year (each, a "Distribution Date"), commencing __________
___, _____, except as otherwise described below and in the Agreement. The amount
of Distributions payable for any quarterly period shall be computed on the basis
of a 360-day year consisting of twelve 30-day months. The Distributions payable
for any partial period will be computed on the basis of the actual number of
days elapsed in such period. "Distribution Period" means the period from and
including the immediately preceding Distribution Date (or __________ ___, _____,
in the case of the first Distribution Period) to but excluding the applicable
Distribution Date or Redemption Date. If a Distribution Date is not a Business
Day, then such Distribution will be made on the next succeeding Business Day,
except if such Business Day is in the next calendar year, such Distribution will
be made on the immediately preceding Business Day.
As long as no Event of Default has occurred and is continuing under the
Indenture, the Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period at any time and
from time to time on the Debentures for a period not exceeding 20 consecutive
periods (each, an "Extension Period"), provided that an Extension Period must
end on an interest payment date for the Debentures and may not extend beyond the
stated maturity date or redemption date for the Debentures. As a consequence of
such deferral, Distributions will also be deferred. Despite such deferral,
quarterly Distributions will continue to accumulate with additional
distributions thereon (to the extent permitted by law but not at a rate greater
than the rate at which interest is then accruing on the Debentures) at the
Distribution Rate then in effect compounded quarterly during any such Extension
Period. Prior to the termination of any such Extension Period, the Debenture
Issuer may further defer payments of interest by further extending such
Extension Period; provided that such Extension Period, together with all such
previous and further extensions, may not exceed 20 consecutive quarterly
periods, must end on an interest payment date for the Debentures and may not
extend beyond the stated maturity date or redemption date of the Debentures. At
the end of the Extension Period, all accumulated and unpaid Distributions (but
only to the extent payments are made in respect of the Debentures held by the
Property Trustee and to the extent the Property Trustee has funds
A1-4
<PAGE> 80
available therefor) will be payable to the Holders as they appear on the books
and records of the Trust on the record date immediately preceding the end of the
Extension Period. Upon the termination of any Extension Period (or any extension
period thereof) and the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the foregoing requirements.
Subject to other conditions set forth in the Agreement and the
Indenture, the Property Trustee may, at the direction of the Sponsor, dissolve
the Trust at any time and cause the Debentures to be distributed to the Holders
of the Preferred Securities in liquidation of the Trust or, simultaneously with
any redemption of the Debentures, cause a Like Amount of the Preferred
Securities to be redeemed by the Trust.
These Preferred Securities shall be redeemable as provided in the
Agreement.
A1-5
<PAGE> 81
ASSIGNMENT
---------------------
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- -------------------------------------------------------------- agent to transfer
this Preferred Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date:
------------------------
Signature:
-------------------
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee**:
-------------------------------------
- ---------------------------
** Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
A1-6
<PAGE> 82
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE SUBJECT
TO THE TERMS OF THE AGREEMENT (AS DEFINED HEREIN)
Certificate Number Number of Common Securities
- ------------------ ----------------------
Certificate Evidencing Common Securities
of
COX RADIO TRUST [___]
_____% Common Securities
(liquidation amount $ per Common Security)
COX RADIO TRUST [___], a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Cox Radio,
Inc. (the "Holder") is the registered owner of __________ securities of the
Trust representing undivided beneficial interests in the assets of the Trust
designated the _____% Common Securities (liquidation amount $ per Common
Security) (the "Common Securities"). The Common Securities are not transferable.
The designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Common Securities represented hereby are issued and shall
in all respects be subject to the provisions of the Amended and Restated Trust
Agreement of the Trust dated as of __________ ___, _____, as the same may be
amended from time to time (the "Agreement"), including the designation of the
terms of the Common Securities as set forth in Annex I to the Agreement.
Capitalized terms used but not defined herein shall have the meaning given them
in the Agreement. The Sponsor will provide a copy of the Agreement, the Common
Securities Guarantee and the Indenture to a Holder without charge upon written
request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Agreement
and is entitled to the benefits thereunder and to the benefits of the Common
Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States Federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
This Common Securities Certificate shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to
principles of conflicts of laws.
<PAGE> 83
IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of _______, ____.
COX RADIO TRUST [___]
By:
--------------------------------
Name:
Title: Administrative Trustee
A2-2
<PAGE> 84
[FORM OF REVERSE OF SECURITY]
Distributions on each Common Security will be payable at a rate per
annum of _____% (the "Distribution Rate") of the Liquidation Amount of $ per
Common Security, such rate being the rate of interest payable on the Debentures
to be held by the Property Trustee. Distributions in arrears for more than one
quarterly period will bear additional distributions thereon compounded quarterly
at the applicable periodic Distribution Rate (to the extent permitted by
applicable law). The term "Distributions", as used herein, includes any such
additional distributions unless otherwise stated. A Distribution is payable only
to the extent that payments are made in respect of the Debentures held by the
Property Trustee and to the extent the Property Trustee has funds legally
available therefor.
Distributions on the Common Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from __________ ___, _____, to but excluding
the related Distribution Date (as defined herein) or any date fixed for
redemption (a "Redemption Date"), and will be payable quarterly in arrears on
_____________, _______________, ________________ and _______________ of each
year, commencing __________ ___, _____ (each, a "Distribution Date"), except as
otherwise described below and in the Agreement. The amount of Distributions
payable for any Distribution Period will be computed on the basis of a 360-day
year consisting of twelve 30-day months. The Distributions payable for any
partial period will be computed on the basis of the actual number of days
elapsed in such period. "Distribution Period" means the period from and
including the immediately preceding Distribution Date (or __________ ___, _____,
in the case of the first Distribution Period) to but excluding the applicable
Distribution Date or Redemption Date. If a Distribution Date is not a Business
Day, then such Distribution Date and the first day of the Distribution Period
commencing on such Distribution Date will be the next succeeding Business Day
and no interest or other payment in respect of any such delay shall accumulate
for the period to but excluding such Business Day. However, if the next
succeeding Business Day is in the next calendar year, payment of Distributions
will be made on the immediately preceding Business Day.
As long as no Event of Default has occurred and is continuing under the
Indenture, the Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period at any time and
from time to time on the Debentures for a period not exceeding 20 consecutive
quarterly periods (each, an "Extension Period"), provided that an Extension
Period must end on an interest payment date for the Debentures and may not
extend beyond the stated maturity date or redemption date for the Debentures. As
a consequence of such deferral, Distributions will also be deferred. Despite
such deferral, quarterly Distributions will continue to accumulate with
additional interest thereon (to the extent permitted by applicable law but not
at a rate greater than the rate at which interest is then accruing on the
Debentures) at the Distribution Rate then in effect compounded quarterly during
any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that such Extension Period, together
with all such previous and further extensions, may not exceed 20 consecutive
quarterly periods, must end on an interest payment date for the Debentures and
may
A2-3
<PAGE> 85
not extend beyond the Maturity Date or Redemption Date of the Debentures. At the
end of the Extension Period, all accumulated and unpaid Distributions (but only
to the extent payments are made in respect of the Debentures held by the
Property Trustee and to the extent the Property Trustee has funds legally
available therefor) will be payable to the Holders as they appear on the books
and records of the Trust on the record date immediately preceding the end of the
Extension Period. Upon the termination of any Extension Period and the payment
of all amounts then due, the Debenture Issuer may commence a new Extension
Period, subject to the foregoing requirements.
The Common Securities shall be redeemable as provided in the Agreement.
A2-4
<PAGE> 1
EXHIBIT 4.9
===============================================================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
COX RADIO, INC.
Dated as of _______ ___, _____
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation..............................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application............................................................5
SECTION 2.2 Lists of Holders of Securities..............................................................5
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee.......................................6
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee..................................6
SECTION 2.5 Evidence of Compliance with Conditions Precedent............................................6
SECTION 2.6 Events of Default; Waiver...................................................................6
SECTION 2.7 Event of Default; Notice....................................................................6
SECTION 2.8 Conflicting Interests.......................................................................7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee.............................7
SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee....................................9
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities Guarantee.................11
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility........................................11
SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities Guarantee Trustee.............12
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee..................................................................................13
SECTION 5.2 Waiver of Notice and Demand................................................................13
SECTION 5.3 Obligations Not Affected...................................................................13
SECTION 5.4 Rights of Holders..........................................................................14
SECTION 5.5 Guarantee of Payment.......................................................................14
SECTION 5.6 Subrogation................................................................................14
SECTION 5.7 Independent Obligations....................................................................15
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.................................................................15
SECTION 6.2 Ranking....................................................................................16
ARTICLE VII
TERMINATION
SECTION 7.1 Termination................................................................................16
ARTICLE VIII
EXCULPATION, INDEMNIFICATION AND COMPENSATION
SECTION 8.1 Exculpation................................................................................16
SECTION 8.2 Indemnification............................................................................17
SECTION 8.3 Compensation...............................................................................17
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.....................................................................17
SECTION 9.2 Amendments.................................................................................18
SECTION 9.3 Notices....................................................................................18
SECTION 9.4 Benefit....................................................................................19
SECTION 9.5 Governing Law..............................................................................19
</TABLE>
ii
<PAGE> 4
PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT (the "Preferred
Securities Guarantee"), dated as of ________ ___, ____, is executed and
delivered by Cox Radio, Inc., a Delaware corporation (the "Guarantor"), and The
Bank of New York, a New York banking corporation, as trustee (the "Preferred
Securities Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined herein) of
Cox Radio Trust [___], a statutory business trust formed under the laws of the
State of Delaware (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Agreement"), dated as of ________ ___, ____, among the trustees of the
Issuer, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
authorized to issue up to _____________ preferred securities, having an
aggregate Liquidation Amount of $ _____________, such preferred securities
being designated the ____% Trust Originated Preferred Securities (collectively,
the "Preferred Securities").
WHEREAS, as an incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Preferred Securities Guarantee, to pay
to the Holders of the Preferred Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set
forth herein.
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") with substantially
identical terms to this Preferred Securities Guarantee, for the benefit of the
holders of the Common Securities (as defined herein), except that if an event
of default under the Agreement has occurred and is continuing, the rights of
holders of the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee are subordinated, to the extent and in the manner set
forth in the Common Securities Guarantee, to the rights of holders of Preferred
Securities to receive Guarantee Payments under this Preferred Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Preferred Securities, which purchase the Guarantor hereby
acknowledges shall benefit the Guarantor, the Guarantor executes and delivers
this Preferred Securities Guarantee for the benefit of the Holders.
<PAGE> 5
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Preferred Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have
the respective meanings assigned to them in this
Section 1.1;
(b) terms defined in the Agreement as at the date of
execution of this Preferred Securities Guarantee
have the same meaning when used in this Preferred
Securities Guarantee unless otherwise defined in
this Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(d) all references to "the Preferred Securities
Guarantee" or "this Preferred Securities Guarantee"
are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(e) all references in this Preferred Securities
Guarantee to Articles and Sections are to Articles
and Sections of this Preferred Securities Guarantee,
unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the
same meaning when used in this Preferred Securities
Guarantee, unless otherwise defined in this
Preferred Securities Guarantee or unless the context
otherwise requires; and
(g) a reference to the singular includes the plural and
vice versa.
"Affiliate" has the same meaning as given to that term in
Rule 405 under the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Business Day" means any day other than a Saturday or a
Sunday, or a day on which banking institutions or trust companies in The City
of New York are authorized or required by law, regulation or executive order to
close.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Preferred
Securities Guarantee Trustee for the conduct of corporate trust business, at
which matters related to this Preferred Securities Guarantee Trustee shall, at
any particular time, be principally administered, which
2
<PAGE> 6
office at the date of execution of this Agreement is located at 101 Barclay
Street, Floor 21 West, New York, New York 10286, Attention: Corporate Trust
Administration.
"Covered Person" means any Holder or beneficial owner of
Preferred Securities.
"Debentures" means the series of junior subordinated debt
securities of the Guarantor designated the ____% Junior Subordinated Deferrable
Interest Debentures due _____, held by the Property Trustee (as defined in the
Agreement) of the Issuer.
"Event of Default" means a default by the Guarantor in
respect of any of its payment or other obligations under this Preferred
Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Securities,
to the extent not paid or made by the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Agreement) that are required to be paid on
such Preferred Securities, to the extent the Issuer has funds legally available
therefor at such time; (ii) the redemption price, including all accumulated and
unpaid Distributions to the date of redemption (the "Redemption Price"), to the
extent the Issuer has funds legally available therefor at such time, with
respect to any Preferred Securities called for redemption by the Issuer; and
(iii) upon a voluntary or involuntary dissolution and liquidation of the Issuer
(other than in connection with the distribution of the Debentures to holders of
the Preferred Securities or the redemption of the Preferred Securities as
provided in the Agreement), the lesser of (a) the aggregate of the Liquidation
Amount and all accumulated and unpaid Distributions on the Preferred Securities
to the date of payment, to the extent the Issuer has funds legally available
therefor at such time, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution"). If an event of default under the
Agreement has occurred and is continuing, no Guarantee Payments under the
Common Securities Guarantee with respect to the Common Securities or any
guarantee payment under any Other Common Securities Guarantees shall be made
until the Holders of Preferred Securities shall be paid in full the Guarantee
Payments to which they are entitled under this Preferred Securities Guarantee.
"Holder" shall mean any holder, as registered on the books
and records of the Issuer, of any Preferred Securities; provided, however,
that, in determining whether the holders of the requisite percentage of
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate of the
Guarantor.
"Indemnified Person" means the Preferred Securities Guarantee
Trustee, any Affiliate of the Preferred Securities Guarantee Trustee, or any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Preferred Securities
Guarantee Trustee.
"Indenture" means the Junior Subordinated Debentures
Indenture, dated as of ________ ___, ____, between Cox Radio, Inc., as issuer
(the "Debenture Issuer"), and The Bank of New York, as trustee, pursuant to
which the Debentures are to be issued to the Property Trustee of the Issuer.
"Liquidation Amount" means $[______] per Preferred Security.
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"List of Holders" has the meaning set forth in Section 2.2.
"Majority in Liquidation Amount of the Preferred Securities"
means, except as provided by the Trust Indenture Act, a vote by Holder(s) of
Preferred Securities, voting separately as a class, of more than 50% of the
aggregate Liquidation Amount (including the amount payable on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date
upon which the voting percentages are determined) of all Preferred Securities.
"Officer's Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President, a Vice
President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary. Any Officer's Certificate delivered with respect to compliance with
a condition or covenant provided for in this Preferred Securities Guarantee
shall include:
(a) a statement that the officer signing the Officer's
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by such officer in rendering
the Officer's Certificate;
(c) a statement that such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such
officer, such condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the same
meaning as "Other Guarantees" in the Common Securities Guarantee.
"Other Debentures" means all junior subordinated debentures
issued by the Guarantor from time to time and sold to trusts established by the
Guarantor, in each case similar to the Issuer.
"Other Guarantees" means all guarantees issued by the
Guarantor with respect to preferred securities similar to the Preferred
Securities issued by other trusts established by the Guarantor, in each case
similar to the Issuer.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities Guarantee Trustee" means The Bank of
New York, a New York banking corporation, until a Successor Preferred
Securities Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee and
thereafter means each such Successor Preferred Securities Guarantee Trustee.
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"Responsible Officer" means, with respect to the Preferred
Securities Guarantee Trustee, any officer within the Corporate Trust Office of
the Preferred Securities Guarantee Trustee, including any vice-president, any
assistant vice-president, any assistant secretary, any assistant treasurer or
other officer of the Corporate Trust Office of the Preferred Securities
Guarantee 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 of the Preferred
Securities Guarantee Trustee to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Successor Preferred Securities Guarantee Trustee" means a
successor Preferred Securities Guarantee Trustee possessing the qualifications
to act as Preferred Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trust Securities" means, collectively, the Common Securities
and the Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Preferred Securities Guarantee is subject to
the provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee and shall, to the extent applicable, be governed
by such provisions.
(b) If and to the extent that any provision of this
Preferred Securities Guarantee limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Preferred Securities
Guarantee Trustee H unless the Preferred Securities Guarantee Trustee is
otherwise the registrar of the Preferred Securities) with a list, in such form
as the Preferred Securities Guarantee Trustee may reasonably require, of the
names and addresses of the Holders of the Preferred Securities ("List of
Holders"), (i) within 14 days after each record date for payment of
Distributions, as of such record date and (ii) at any other time within 30 days
of receipt by the Guarantor of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to the Preferred
Securities Guarantee Trustee, provided that the Guarantor shall not be
obligated to provide such List of Holders at any time the List of Holders does
not differ from the most recent List of Holders given to the Preferred
Securities Guarantee Trustee by the Guarantor. The Preferred Securities
Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Preferred Securities Guarantee Trustee shall
comply with its obligations under Sections 311(a), 311(b) and Section 312(b) of
the Trust Indenture Act.
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SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee
Within 60 days after September 1 of each year, commencing
September 1, ____, the Preferred Securities Guarantee Trustee shall provide to
the Holders of the Preferred Securities such reports as are required by Section
313 of the Trust Indenture Act, if any, in the form and in the manner provided
by Section 313 of the Trust Indenture Act. The Preferred Securities Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee
The Guarantor shall provide to the Preferred Securities
Guarantee Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act. Delivery
of such reports, information and documents to the Preferred Securities
Guarantee Trustee is for informational purposes only and the Preferred
Securities Guarantee Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Guarantor's compliance with any of
its covenants hereunder (as to which the Preferred Securities Guarantee Trustee
is entitled to rely exclusively on Officer's Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Securities
Guarantee Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Preferred Securities Guarantee that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officer's Certificate.
SECTION 2.6 Event of Default; Notice
The Holders of a Majority in Liquidation Amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Securities Guarantee Trustee shall,
within 90 days after the occurrence of a default with respect to this Preferred
Securities Guarantee, mail by first class postage prepaid, to all Holders of
the Preferred Securities, notices of all defaults actually known to a
Responsible Officer of the Preferred Securities Guarantee Trustee, unless such
defaults have been cured before the giving of such notice, provided, that,
except in the case of default in the payment of any Guarantee Payment, the
Preferred Securities Guarantee Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive
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committee, or a trust committee of directors and/or Responsible Officers of the
Preferred Securities Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Preferred
Securities.
(b) The Preferred Securities Guarantee Trustee shall not
be deemed to have knowledge of any Event of Default unless the Preferred
Securities Guarantee Trustee shall have received written notice, or a
Responsible Officer of the Preferred Securities Guarantee Trustee shall have
obtained actual knowledge, of such Event of Default.
SECTION 2.8 Conflicting Interests
The Indenture shall be deemed to be specifically described in
this Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee
Trustee
(a) This Preferred Securities Guarantee shall be held by
the Preferred Securities Guarantee Trustee for the benefit of the Holders of
the Preferred Securities, and the Preferred Securities Guarantee Trustee shall
not transfer this Preferred Securities Guarantee to any Person except a Holder
of Preferred Securities exercising his or her rights pursuant to Section 5.4(b)
or to a Successor Preferred Securities Guarantee Trustee on acceptance by such
Successor Preferred Securities Guarantee Trustee of its appointment to act as
Successor Preferred Securities Guarantee Trustee. The right, title and interest
of the Preferred Securities Guarantee Trustee shall automatically vest in any
Successor Preferred Securities Guarantee Trustee, and such vesting and
succession of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such Successor
Preferred Securities Guarantee Trustee.
(b) If an Event of Default actually known to a
Responsible Officer of the Preferred Securities Guarantee Trustee has occurred
and is continuing, the Preferred Securities Guarantee Trustee shall enforce
this Preferred Securities Guarantee for the benefit of the Holders of the
Preferred Securities. In such event, any moneys collected shall first be paid
to the Preferred Securities Guarantee Trustee for amounts due under Section 8.3
and then to the Holders of the Preferred Securities.
(c) The Preferred Securities Guarantee Trustee, before
the occurrence of any Event of Default and after the curing of all Events of
Default that may have occurred, shall undertake to perform only such duties as
are specifically set forth in this Preferred Securities Guarantee, and no
implied covenants shall be read into this Preferred Securities Guarantee
against the Preferred Securities Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer of the Preferred Securities Guarantee
Trustee, the Preferred Securities Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Preferred
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Securities Guarantee, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Preferred Securities Guarantee
shall be construed to relieve the Preferred Securities Guarantee Trustee from
liability for its own negligent action, its own negligent failure to act, its
own bad faith, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the Preferred
Securities Guarantee Trustee shall be determined solely by
the express provisions of this Preferred Securities
Guarantee, and the Preferred Securities Guarantee Trustee
shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this
Preferred Securities Guarantee, and no implied covenants or
obligations shall be read into this Preferred Securities
Guarantee against the Preferred Securities Guarantee Trustee;
and
(B) in the absence of bad faith on the part of
the Preferred Securities Guarantee Trustee, the Preferred
Securities Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Preferred Securities Guarantee Trustee and
conforming to the requirements of this Preferred Securities
Guarantee; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Preferred Securities
Guarantee Trustee, the Preferred Securities Guarantee Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Preferred Securities Guarantee (but shall not be required to
confirm or investigate the accuracy of mathematical
calculations or other facts stated therein);
(ii) the Preferred Securities Guarantee Trustee shall not
be liable for any error of judgment made in good faith by a
Responsible Officer of the Preferred Securities Guarantee Trustee,
unless it shall be proved that the Preferred Securities Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which
such judgment was made;
(iii) the Preferred Securities Guarantee Trustee shall not
be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Holders of a
Majority in Liquidation Amount of the Preferred Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Preferred Securities Guarantee Trustee, or exercising
any trust or power conferred upon the Preferred Securities Guarantee
Trustee under this Preferred Securities Guarantee; and
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(iv) no provision of this Preferred Securities Guarantee
shall require the Preferred Securities Guarantee Trustee to expend or
risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its
rights or powers, if the Preferred Securities Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of this
Preferred Securities Guarantee or if indemnity reasonably satisfactory
to the Preferred Securities Guarantee Trustee against such risk or
liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) the Preferred Securities Guarantee 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, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated
by this Preferred h Securities Guarantee may be sufficiently evidenced
by an Officer's Certificate;
(iii) whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Securities Guarantee Trustee shall
deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Preferred
Securities Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of negligence or bad
faith on its part, request and conclusively rely upon an Officer's
Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor;
(iv) the Preferred Securities Guarantee Trustee shall
have no duty to see to any recording, filing or registration of any
instrument (including any financing or any continuation statement or
any filing under tax or securities laws) or any re-recording, refiling
or registration thereof;
(v) the Preferred Securities Guarantee Trustee may
consult with counsel of its selection, and the advice or written
opinion of such counsel with respect to legal matters or advice within
the scope of such expert's area of expertise shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with such advice or opinion. Such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any of its
employees. The Preferred Securities Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration
of this Preferred Securities Guarantee from any court of competent
jurisdiction;
(vi) the Preferred Securities Guarantee Trustee shall be
under no obligation to exercise any of the rights or powers vested in
it by this Preferred Securities Guarantee at
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the request or direction of any Holder, unless such Holder shall have
provided to the Preferred Securities Guarantee Trustee such security
and indemnity, reasonably satisfactory to the Preferred Securities
Guarantee Trustee, against the reasonable costs, expenses (including
reasonable attorneys' fees and expenses and the reasonable expenses of
the Preferred Securities Guarantee Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as
may be requested by the Preferred Securities Guarantee Trustee;
provided that, nothing contained in this Section 3.2(a)(vi) shall be
taken to relieve the Preferred Securities Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by the terms of this Preferred
Securities Guarantee;
(vii) the Preferred Securities Guarantee Trustee shall not
be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Preferred Securities Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit;
(viii) the Preferred Securities Guarantee Trustee may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, nominees,
custodians or attorneys, and the Preferred Securities Guarantee
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;
(ix) any action taken by the Preferred Securities
Guarantee Trustee or its agents hereunder shall bind the Holders of
the Preferred Securities, and the signature of the Preferred
Securities Guarantee Trustee or its agents alone shall be sufficient
and effective to perform any such action. No third party shall be
required to inquire as to the authority of the Preferred Securities
Guarantee Trustee to so act or as to its compliance with any of the
terms and provisions of this Preferred Securities Guarantee, both of
which shall be conclusively evidenced by the Preferred Securities
Guarantee Trustee's or its agent's taking such action;
(x) whenever in the administration of this Preferred
Securities Guarantee the Preferred Securities Guarantee Trustee shall
deem it desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder, the
Preferred Securities Guarantee Trustee (A) may request instructions
from the Holders of a Majority in Liquidation Amount of the Preferred
Securities, (B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (C)
shall be protected in conclusively relying on or acting in accordance
with such instructions;
(xi) except as otherwise expressly provided by this
Preferred Securities Guarantee, the Preferred Securities Guarantee
Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Preferred Securities
Agreement; and
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(xii) the Preferred Securities Guarantee Trustee shall not
be liable for any action taken, suffered, or omitted to be taken by it
in good faith, without negligence, and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Preferred Securities Guarantee.
(b) No provision of this Preferred Securities Guarantee
shall be deemed to impose any duty or obligation on the Preferred Securities
Guarantee Trustee to perform any act or acts or exercise any right, power, duty
or obligation conferred or imposed on it in any jurisdiction in which it shall
be illegal, or in which the Preferred Securities Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Preferred Securities Guarantee
Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred
Securities Guarantee
The recitals contained in this Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Preferred Securities
Guarantee Trustee does not assume any responsibility for their correctness. The
Preferred Securities Guarantee Trustee makes no representation as to the
validity or sufficiency of this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Preferred Securities
Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars ($50,000,000),
and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred
to above, then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Preferred Securities Guarantee
Trustee shall cease to be eligible to so act under Section 4.1(a), the
Preferred Securities Guarantee Trustee shall immediately resign in the manner
and with the effect set out in Section 310(b) of the Trust Indenture Act.
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(c) If the Preferred Securities Guarantee Trustee has or
shall acquire any "conflicting interest" within the meaning of Section 310(b)
of the Trust Indenture Act, the Preferred Securities Guarantee Trustee and
Guarantor shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities
Guarantee Trustee
(a) Subject to Section 4.2(b), the Preferred Securities
Guarantee Trustee may be appointed or removed without cause at any time by the
Guarantor except during the occurrence and continuance of an Event of Default.
(b) The Preferred Securities Guarantee Trustee shall not
be removed in accordance with Section 4.2(a) until a Successor Preferred
Securities Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Preferred
Securities Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Securities Guarantee Trustee shall
hold office until a Successor Preferred Securities Guarantee Trustee shall have
been appointed or until its removal or resignation. The Preferred Securities
Guarantee Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Preferred Securities
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Preferred Securities Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed
by such Successor Preferred Securities Guarantee Trustee and delivered to the
Guarantor and the resigning Preferred Securities Guarantee Trustee.
(d) If no Successor Preferred Securities Guarantee
Trustee shall have been appointed and accepted appointment as provided in this
Section 4.2 within 60 days after delivery of an instrument of removal or
resignation, the Preferred Securities Guarantee Trustee resigning or being
removed may petition any court of competent jurisdiction for appointment of a
Successor Preferred Securities Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Preferred Securities Guarantee Trustee.
(e) No Preferred Securities Guarantee Trustee shall be
liable for the acts or omissions to act of any Successor Preferred Securities
Guarantee Trustee.
(f) Upon termination of this Preferred Securities
Guarantee or removal or resignation of the Preferred Securities Guarantee
Trustee pursuant to this Section 4.2, the Guarantor shall pay to the Preferred
Securities Guarantee Trustee all amounts due to the Preferred Securities
Guarantee Trustee accrued to the date of such termination, removal or
resignation.
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ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay
in full, on a subordinated basis, to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by the Issuer), as and when
due, regardless of any defense, right of set-off or counterclaim that the
Issuer may have or assert. The Guarantor's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such amounts to the
Holders. The Guarantor will honor all obligations, if any, relating to the
conversion of the Preferred Securities into securities of the Guarantor as set
forth in the Agreement and the Indenture.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Preferred Securities Guarantee shall in no way be affected
or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer
of all or any portion of the distributions, redemption price, liquidation
distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred Securities (other
than an extension of time for payment of Distributions, Redemption Price,
Liquidation Distribution or other sum payable that results from the extension
of any interest payment period on the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
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arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a guarantor;
it being the intent of this Section 5.3 that the obligations of the Guarantor
with respect to the Guarantee Payments shall be absolute and unconditional
under any and all circumstances.
There shall be no obligation of the Holders to give notice
to, or obtain consent of, the Guarantor with respect to the happening of any of
the foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in Liquidation Amount of
the Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Preferred Securities
Guarantee Trustee in respect of this Preferred Securities Guarantee or
exercising any trust or power conferred upon the Preferred Securities Guarantee
Trustee under this Preferred Securities Guarantee.
(b) If the Preferred Securities Guarantee Trustee fails
to enforce this Preferred Securities Guarantee, any Holder of Preferred
Securities may institute a legal proceeding directly against the Guarantor to
enforce the rights of such Holder under this Preferred Securities Guarantee,
without first instituting a legal proceeding against the Issuer, the Preferred
Securities Guarantee Trustee or any other person or entity. The Guarantor
waives any right or remedy to require that any action be brought first against
the Issuer or any other person or entity before proceeding directly against the
Guarantor.
Notwithstanding the foregoing, if the Guarantor has failed to
make a required Guarantee Payment, a Holder of Preferred Securities may
directly institute a proceeding against the Guarantor for enforcement of this
Preferred Securities Guarantee for such Guarantee Payment.
SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of
the Holders of Preferred Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Preferred Securities
Guarantee; provided, however, that the Guarantor shall not
14
<PAGE> 18
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any right that it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Preferred Securities Guarantee, if, at the time of any such
payment, any amounts are due and unpaid under this Preferred Securities
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, the
Guarantor shall not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the Guarantor's capital stock (which includes common and preferred stock) or
(ii) make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities of the Guarantor (including any Other
Debentures) that rank pari passu with or junior in right of payment to the
Debentures or (iii) make any guarantee payments with respect to any guarantee
by the Guarantor of the debt securities of any subsidiary of the Guarantor
(including Other Guarantees) if such guarantee ranks pari passu or junior in
right of payment to the Debentures (other than (a) dividends or distributions
in shares of, or options, warrants or rights to subscribe for or purchase
shares of, common stock of the Guarantor, (b) any declaration of a dividend in
connection with the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the
Preferred Securities Guarantee, (d) as a result of a reclassification of the
Guarantor's capital stock or the exchange or the conversion of one class or
series of the Guarantor's capital stock for another class or series of the
Guarantor's capital stock, including without limitation, the conversion of the
Class B common stock into shares of the Class A common stock of the Guarantor,
(e) the purchase of fractional interests in shares of the Guarantor's capital
stock pursuant to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged, and (f) purchases of common stock
related to the issuance of common stock or rights under any of the Guarantor's
benefit plans for its directors, officers or employees or any of the
Guarantor's dividend reinvestment plans) if at such time (i) there shall have
occurred any event of which the Guarantor has actual knowledge that is, or with
the giving of notice or the lapse of time, or both, would be an Event of
Default, (ii) the Guarantor shall be in default with respect to its payment
obligations under this Preferred Securities Guarantee or (iii) the Guarantor
shall have given notice of its election of the exercise of its right to extend
the
15
<PAGE> 19
interest payment period pursuant to Section 4.01(b) of the Indenture and shall
not have rescinded such notice, and any such extension shall have commenced and
be continuing.
SECTION 6.2 Ranking
This Preferred Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to all other liabilities of the Guarantor except any
liabilities (including the Other Guarantees, the Common Securities Guarantee
and the Other Common Securities Guarantees) that may be pari passu or junior
expressly by their terms, and (ii) senior to the Guarantor's capital stock now
or hereafter issued by the Guarantor, if any, and with any guarantee now or
hereafter entered into by the Guarantor in respect of any of the Guarantor's
capital stock. The foregoing subordination shall not apply to amounts payable
under Article VIII.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate and be of
no further force and effect upon (i) full payment of the Redemption Price of
all Preferred Securities, or (ii) liquidation of the Issuer, the full payment
of the amounts payable in accordance with the Agreement or the distribution of
the Debentures to the Holders of all of the Preferred Securities.
Notwithstanding the foregoing, this Preferred Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder of Preferred Securities must restore payment of any sums paid
under the Preferred Securities or under this Preferred Securities Guarantee.
ARTICLE VIII
EXCULPATION, INDEMNIFICATION AND COMPENSATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the Guarantor or any Covered Person
for any loss, damage, liability, expense or claim incurred by reason of any act
or omission performed or omitted by such Indemnified Person in good faith in
accordance with this Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Preferred Securities Guarantee or
by law, except that this provision shall not be deemed to modify Section
3.1(d).
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Guarantor and upon such
information, opinions, reports or statements presented to the Guarantor by any
Person as to matters the Indemnified Person reasonably believes are within such
other Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any
16
<PAGE> 20
other facts pertinent to the existence and amount of assets from which
Distributions to Holders of Preferred Securities might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person
for, and to hold each Indemnified Person harmless against, any and all loss,
liability, damage, claim or expense incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
reasonable costs and expenses (including reasonable legal fees and expenses) of
defending itself against, or investigating, any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of this Preferred Securities Guarantee or the
resignation or removal of the Preferred Securities Guarantee Trustee.
SECTION 8.3 Compensation
The Guarantor agrees:
(a) to pay to the Preferred Securities Guarantee Trustee
from time to time such compensation as shall be agreed in writing between the
Company and the Preferred Securities Guarantee Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust); and
(b) to reimburse the Preferred Securities Guarantee
Trustee upon its request for reasonable expenses, disbursements and advances
incurred or made by the Preferred Securities Guarantee Trustee in accordance
with any provision of this Preferred Securities Guarantee (including the
reasonable compensation and the expenses and advances of its agents and
counsel), except any such expense or advance as may be attributable to its
negligence, willful misconduct or bad faith.
The Preferred Securities Guarantee Trustee shall have a claim
and lien prior to the Preferred Securities holders as to all property and funds
held by it hereunder for any amount owing to it or any predecessor Preferred
Securities Guarantee Trustee for fees and expenses pursuant to this Article.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Preferred Securities then outstanding.
Except in connection with any merger or consolidation of the
Guarantor with or into another entity permitted by the Indenture or any sale,
transfer or lease of the Guarantor's
17
<PAGE> 21
assets to another entity permitted by the Indenture, the Guarantor may not
assign its rights or delegate its obligations under this Preferred Securities
Guarantee.
SECTION 9.2 Amendments
Except with respect to any changes that do not materially
adversely affect the rights of Holders (in which case no approval of Holders
will be required), this Preferred Securities Guarantee may only be amended with
the prior approval of the Holders of a Majority in Liquidation Amount of the
outstanding Preferred Securities (including the amount payable on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date
upon which the voting percentages are determined). The provisions of Section
12.2 of the Agreement with respect to meetings of Holders of the Securities
apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, in care of the
Administrative Trustee at the Issuer's mailing address set forth below (or such
other address as the Issuer may give notice of to the Holders of the Common
Securities):
Cox Radio Trust [ ]
c/o Cox Radio, Inc.
1400 Lake Hearn Drive
Atlanta, Georgia 30319
Attention:
-----------------------
Administrative Trustee
Telecopy:
-----------------------
(b) If given to the Preferred Securities Guarantee
Trustee, at the Preferred Securities Guarantee Trustee's mailing address set
forth below (or such other address as the Preferred Securities Guarantee
Trustee may give notice of to the Holders of the Preferred Securities):
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: (212) 815-5758
Telecopier: (212) 815-5915
(c) If given to the Guarantor, at the Guarantor's
mailing address set forth below (or such other address as the Guarantor may
give notice of to the Holders of the Preferred Securities):
18
<PAGE> 22
Cox Radio, Inc.
1400 Lake Hearn Drive
Atlanta, Georgia 30319
Attention: Richard Jacobson
Telecopy: (404) 843-5142
(d) If given to any Holder of Preferred Securities, at
the address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed (with originals to follow
by first-class mail), or mailed by first class mail, postage prepaid except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such refusal or
inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit
of the Holders of the Preferred Securities and, subject to Section 3.1(a), is
not separately transferable from the Preferred Securities.
SECTION 9.5 Governing Law
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 9.6 Counterparts
The parties may sign any number of copies of this Preferred
Securities Guarantee. Each signed copy shall be an original, but all of them
together represent the same agreement. Any signed copy shall be sufficient
proof of this Preferred Securities Guarantee.
19
<PAGE> 23
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day
and year first above written.
Cox RADIO, Inc.,
as Guarantor
By:
--------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Preferred
Securities Guarantee Trustee
By:
--------------------------------------------
Name:
Title:
<PAGE> 1
Exhibit 5.1
[Dow, Lohnes & Albertson Letterhead]
April 20, 2000
Cox Radio, Inc.
1400 Lake Hearn Drive
Atlanta, Georgia 30319
Re: Registration Statement on Form S-3 of Securities (as defined
below) of Cox Radio, Inc. and preferred securities of Cox
Radio Trust I and Cox Radio Trust II
Ladies and Gentlemen:
We have acted as special counsel to Cox Radio, Inc., a Delaware
corporation ("Cox"), in connection with the preparation of the above-reference
registration statement, (the "Registration Statement"), filed with the
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "Act"), to register the public offering
of (A) (i) debentures, notes, bonds or other evidences of indebtedness (the
"Debt Securities"), (ii) Class A Common Stock, par value $1.00 per share (the
"Common Stock"), (iii) stock purchase contracts, (iv) stock purchase units and
(v) Preferred Stock, par value $1.00 per share (the "Preferred Stock") by Cox,
(B) preferred securities by Cox Radio Trust I, a Delaware business trust and
sponsored by Cox, and (C) preferred securities by Cox Radio Trust II, a
Delaware business trust sponsored by Cox.
In preparing this opinion we have examined and reviewed such documents
and made such investigations of law as we have considered necessary or
appropriate to render the opinions expressed below. We have reviewed (a) the
Registration Statement; (b) Cox's Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws; (c) the Indenture entered into
on May 26, 1998 by Cox and The Bank of New York, as Trustee, providing for the
issuance of the Debt Securities (the "Indenture"); and (d) such other
documents, corporate records, certificates of public officials, certificates of
officers of the Company and other instruments relating to the authorization and
issuance of the Securities as we deemed relevant or necessary for the opinion
herein expressed. As to matters of fact relevant to our opinion, we have relied
upon certificates of officers of Cox without further investigation.
With respect to the foregoing documents, we have assumed (i) the
authenticity of all documents submitted to us as originals, the conformity with
authentic original documents of all documents submitted to us as copies or
forms, the genuineness of all signatures and the legal capacity of natural
persons, and (ii) that the foregoing documents, in the forms thereof submitted
for our review, have not been altered, amended or repealed in any respect
material to our opinion as stated herein. We have not reviewed any documents
other than the documents listed above for purposes of rendering our opinion as
expressed herein, and we assume that there exists no provision of any such
<PAGE> 2
other document that bears upon or is inconsistent with our opinion as expressed
herein. We have conducted no independent factual investigation of our own but
rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we assume to be true, complete and accurate in all
material respects.
Our opinion is limited to matters of law of the General Corporation
Law of the State of Delaware and the United States of America, insofar as such
laws apply, and we express no opinion as to conflicts of law rules, or the laws
of any states or jurisdictions, including federal laws regulating securities or
other federal laws, or the rules and regulations of stock exchanges or any
other regulatory body, other than as specified above.
Based upon and subject to the foregoing and any other qualifications
stated herein, we are of the opinion that:
(1) When the Debt Securities have been validly authorized for
issuance, and subject to the Registration Statement becoming effective and any
applicable state securities or Blue Sky laws being complied with, when the
terms thereof and their issue and sale have been duly established, upon
issuance and delivery thereof as set forth in the Registration Statement, and
upon receipt by Cox for the purchase price thereof, the Debt Securities will be
validly issued and will constitute valid and binding obligations of Cox,
subject, as to enforcement, (i) to any applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium (whether general or specific)
and similar laws relating to or affecting creditors' rights or the relief of
debtors generally and (b) to general principles of equity and judicial
discretion. We also express no opinion concerning the enforceability of waivers
of notice or of any other waiver of stay, extension or usury laws.
(2) When (a) the terms of the series of the Preferred Stock
and their issue and sale have been duly established, and, if applicable, a
deposit agreement has been duly authorized, executed and delivered by Cox and a
depositary in each case in conformity with Cox's Amended and Restated
Certificate of Incorporation and the laws of the State of Delaware, (b) a
certificate of designations with respect to such series of the Preferred Stock
has been duly filed with the Secretary of State of the State of Delaware, (c)
the Registration Statement has become effective and any applicable state
securities or Blue Sky laws have been complied with, (d) the shares of such
series of Preferred Stock have been issued, and delivered as set forth in the
Registration Statement, and (e) Cox has received the purchase price of such
shares in accordance with the terms of their issue and sale, the shares of such
series of Preferred Stock will be validly issued, fully paid and nonassessable.
(3) When the issuance of the Common Stock to be issued by Cox
has been duly authorized, and subject to the Registration Statement becoming
effective and applicable Blue Sky laws being complied with, when the terms of
their issue and sale have been duly established, upon the issuance and delivery
thereof as set forth in the Registration Statement, and upon the receipt by Cox
of the purchase price thereof, the Common Stock will be validly issued, fully
paid and nonassessable.
-2-
<PAGE> 3
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement and to all references to our firm in the Registration
Statement, provided, however, that in giving such consent we do not admit that
we come within the category of persons whose consent is required under Section
7 of the Act or the Rules and Regulations of the Commission thereunder. Except
as provided for hereinabove, without our prior written consent, this opinion
may not be furnished or quoted to, or relied upon by, any other person or
entity for any purpose.
DOW, LOHNES & ALBERTSON, PLLC
By: /s/ Stuart A. Sheldon
------------------------------------
Stuart A. Sheldon
Member
-3-
<PAGE> 1
EXHIBIT 5.2
[Letterhead of Richards, Layton & Finger, P.A.]
April 21, 2000
Cox Radio Trust I
Cox Radio Trust II
c/o Cox Radio Inc.
1400 Lake Hearn Drive
Atlanta, Georgia 30319
Re: Cox Radio Trust I
Cox Radio Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Cox
Communications, Inc., a Delaware corporation (the "Company"), Cox Radio Trust
I, a Delaware business trust ("Cox I"), and Cox Radio Trust II, a Delaware
business trust ("Cox II"), in connection with the matters set forth herein. At
your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth,
our examination of documents has been limited to the examination of originals
or copies of the following:
(a) The Certificate of Trust of Cox I, dated as of
November 2, 1999 (the "Cox I Certificate"), as filed in the office of the
Secretary of State of the State of Delaware (the "Secretary of State") on
November 2, 1999;
(b) The Declaration of Trust of Cox I, dated as of
November 2, 1999, among the Company, as sponsor, and The Bank of New York, a
New York banking corporation ("BONY"), and The Bank of New York (Delaware), a
Delaware banking corporation ("BONY (Delaware)"), as trustees of Cox I;
(c) The Certificate of Trust of Cox II, dated as of
November 2, 1999 (the "Cox II Certificate"), as filed in the office of the
Secretary of State on November 2, 1999;
<PAGE> 2
Cox Radio Trust I
Cox Radio Trust II
April 21, 2000
Page 2
(d) The Declaration of Trust of Cox II, dated as of
November 2, 1999, among the Company, as sponsor, and BONY and BONY (Delaware),
as trustees of Cox II;
(e) The Registration Statement (the "Registration
Statement") on Form S-3, as filed by the Company, Cox I and Cox II with the
Securities and Exchange Commission (the "SEC") on April 21, 2000, including a
preliminary prospectus (the "Prospectus"), relating to, inter alia, the Trust
Preferred Securities of Cox I representing undivided beneficial interests in
the assets of Cox I (each, a "Cox I Preferred Security" and collectively, the
"Cox I Preferred Securities") and the Trust Preferred Securities of Cox II
representing undivided beneficial interests in the assets of Cox II (each, a
"Cox II Preferred Security" and collectively, the "Cox II Preferred
Securities");
(f) A form of Amended and Restated Trust Agreement of Cox
I, to be entered into among the Company, as sponsor, the trustees of Cox I
named therein, and the holders, from time to time, of undivided beneficial
interests in Cox I (including Annex I and Exhibits A-1 and A-2 thereto) (the
"Cox I Agreement"), attached as an exhibit to the Registration Statement;
(g) A form of Amended and Restated Trust Agreement of Cox
II, to be entered into among the Company, as sponsor, the trustees of Cox II
named therein, and the holders, from time to time, of undivided beneficial
interests in Cox II (including Annex I and Exhibits A-1 and A-2 thereto) (the
"Cox II Agreement"), attached as an exhibit to the Registration Statement;
(h) A Certificate of Good Standing for Cox I, dated April
20, 2000, obtained from the Secretary of State; and
(i) A Certificate of Good Standing for Cox II, dated
April 20, 2000, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Cox I Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed above, and we have assumed that there
exists no provision in any document that we have not reviewed that bears upon
or is inconsistent with the opinions stated herein. We have conducted no
independent factual investigation of our own but rather have relied solely upon
the foregoing documents, the statements and information set forth therein and
the additional matters recited or assumed herein, all of which we have assumed
to be true, complete and accurate in all material respects.
<PAGE> 3
Cox Radio Trust I
Cox Radio Trust II
April 21, 2000
Page 3
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Cox I Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of Cox I, and that the Cox I Agreement and the Cox I
Certificate are in full force and effect and have not been amended, and no
amendment of the Cox I Agreement or the Cox I Certificate is pending or has
been proposed, (ii) that the Cox II Agreement constitutes the entire agreement
among the parties thereto with respect to the subject matter thereof, including
with respect to the creation, operation and termination of Cox II, and that the
Cox II Agreement and the Cox II Certificate are in full force and effect and
have not been amended, and no amendment of the Cox II Agreement or the Cox II
Certificate is pending or has been proposed, (iii) except to the extent
provided in paragraphs 1 and 4 below, the due creation or due organization or
due formation, as the case may be, and valid existence in good standing of each
party to the documents examined by us under the laws of the jurisdiction
governing its creation, organization or formation, (iv) the legal capacity of
natural persons who are parties to the documents examined by us, (v) that each
of the parties to the documents examined by us has the power and authority to
execute and deliver, and to perform its obligations under, such documents, (vi)
the due authorization, execution and delivery by all parties thereto of all
documents examined by us, (vii) the receipt by each Person to whom a Cox I
Preferred Security is to be issued by Cox I (collectively, the "Cox I Preferred
Security Holders") of a certificate evidencing the Cox I Preferred Security and
the payment for the Cox I Preferred Security acquired by it, in accordance with
the Cox I Agreement and the Registration Statement, (viii) that the Cox I
Preferred Securities are issued and sold to the Cox I Preferred Security
Holders in accordance with the Cox I Agreement and the Registration Statement,
(ix) the receipt by each Person to whom a Cox II Preferred Security is to be
issued by Cox II (collectively, the "Cox II Preferred Security Holders") of a
certificate evidencing the Cox II Preferred Security and the payment for the
Cox II Preferred Security acquired by it, in accordance with the Cox II
Agreement and the Registration Statement, and (x) that the Cox II Preferred
Securities are issued and sold to the Cox II Preferred Security Holders in
accordance with the Cox II Agreement and the Registration Statement. We have
not participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
<PAGE> 4
Cox Radio Trust I
Cox Radio Trust II
April 21, 2000
Page 4
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. Cox I has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, 12
Del. C. ss. 3801, et seq (the "Act").
2. The Cox I Preferred Securities will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of Cox I.
3. The Cox I Preferred Security Holders, as beneficial owners
of Cox I, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Cox I
Preferred Security Holders may be obligated to make payments as set forth in
the Cox I Agreement.
4. Cox II has been duly created and is validly existing in
good standing as a business trust under the Act.
5. The Cox II Preferred Securities will represent valid and,
subject to the qualifications set forth in paragraph 6 below, fully paid and
nonassessable undivided beneficial interests in the assets of Cox II.
6. The Cox II Preferred Security Holders, as beneficial
owners of Cox II, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Cox II
Preferred Security Holders may be obligated to make payments as set forth in
the Cox II Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the
<PAGE> 5
Cox Radio Trust I
Cox Radio Trust II
April 21, 2000
Page 5
use of our name under the heading "Legal Matters" in the Prospectus. In giving
the foregoing consents, we do not thereby admit that we come within the
category of Persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the SEC thereunder.
Except as stated above, without our prior written consent, this opinion may not
be furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A
<PAGE> 1
EXHIBIT 12
COX RADIO, INC.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
1995 1996 1997 1998 1999
--------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
EARNINGS AVAILABLE FOR FIXED CHARGES:
Income before income taxes 14,380 24,697 84,531 45,054 94,826
Fixed charges 6,552 5,086 12,030 18,960 24,610
--------------------------------------------------------------------
Total 20,941 29,783 96,561 64,014 119,436
====================================================================
FIXED CHARGES:
Interest expense 5,974 4,580 11,033 17,641 23,226
Interest component of rent expense 578 506 997 1,319 1,384
--------------------------------------------------------------------
Total 6,552 5,086 12,030 18,960 24,610
====================================================================
RATIO OF EARNINGS TO FIXED CHARGES 3.20 5.86 8.03 3.38 4.85
====================================================================
</TABLE>
<PAGE> 1
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Cox Radio, Inc., Cox Radio Trust I, and Cox Radio Trust II on Form S-3 of our
report dated February 7, 2000 (March 6, 2000 as to Note 15 and March 14, 2000 as
to Note 16), appearing in the Annual Report on Form 10-K/A (Amendment No. 1) of
Cox Radio, Inc. for the year ended December 31, 1999 and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ Deloitte & Touche LLP
Atlanta, Georgia
April 20, 2000
<PAGE> 1
EXHIBIT 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Cox Radio, Inc., Cox Radio Trust I, and Cox Radio Trust II on Form S-3 of our
report dated March 31, 2000 (relating to the combined statements of revenues and
direct operating expenses of WAPE-FM Jacksonville, Florida; WFYV-FM
Jacksonville, Florida; WKQL-FM Jacksonville, Florida; WMXQ-FM Jacksonville,
Florida; WOKV-AM Jacksonville, Florida; WBWL-AM Jacksonville, Florida; WPLR-FM
New Haven, Connecticut; WKHL-FM Stamford-Norwalk, Connecticut; WSTC-AM
Stamford-Norwalk, Connecticut; WEFX-FM Stamford-Norwalk, Connecticut; and
WNLK-AM Stamford-Norwalk, Connecticut (while under ownership of Capstar
Broadcasting Corporation)) appearing in the Current Report on Form 8-K of Cox
Radio, Inc. dated August 30, 1999 and filed April 19, 2000, and the reference to
us under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ Deloitte & Touche LLP
Atlanta, Georgia
April 20, 2000
<PAGE> 1
Exhibit 23.5
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Cox Radio, Inc., Cox Radio Trust I, and Cox Radio Trust II on Form S-3 of our
report dated March 31, 2000 (relating to the combined statements of assets to be
acquired of WEDR-FM Miami, Florida; WFOX-FM Atlanta, Georgia; WAPE-FM
Jacksonville, Florida; WFYV-FM Jacksonville, Florida; WKQL-FM Jacksonville,
Florida; WMXQ-FM Jacksonville, Florida; WOKV-AM Jacksonville, Florida; WBWL-AM
Jacksonville, Florida; WPLR-FM New Haven, Connecticut; WKHL-FM Stamford-Norwalk,
Connecticut; WSTC-AM Stamford-Norwalk, Connecticut; WEFX-FM Stamford-Norwalk,
Connecticut; and WNLK-AM Stamford-Norwalk, Connecticut (radio stations owned by
AMFM Inc.) and the related combined statements of revenues and direct operating
expenses (while under ownership of AMFM Inc.)) appearing in the Current Report
on Form 8-K of Cox Radio, Inc. dated August 30, 1999 and filed April 19, 2000,
and the reference to us under the heading "Experts" in the Prospectus, which is
part of this Registration Statement.
/s/ Deloitte & Touche LLP
Atlanta, Georgia
April 20, 2000
<PAGE> 1
EXHIBIT 23.6
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" and to the
incorporation by reference in the Registration Statement on Form S-3 and
related Prospectus of Cox Radio, Inc., Cox Radio Trust I, and Cox Radio Trust
II whereby Cox Radio, Inc. may offer shares of Class A common stock, shares of
preferred stock, stock purchase units, unsecured debentures, notes, bonds or
other evidences of indebtedness, warrants or subscription rights to purchase
shares of Class A common stock, preferred stock or debt securities, and Cox
Radio Trusts may offer trust preferred securities, all of which securities
combined, have an aggregate initial public offering price of $750,000,000, of
our report dated March 16, 2000, with respect to the consolidated financial
statements of Marlin Broadcasting, Inc. as of and for the years ended December
31, 1999 and 1998 included in the Current Report on Form 8-K of Cox Radio,
Inc., dated August 30, 1999 and filed April 19, 2000 with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Hartford, Connecticut
April 19, 2000
<PAGE> 1
EXHIBIT 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
-------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-------------
COX RADIO, INC.
(Exact name of obligor as specified in its charter)
Delaware 58-1620022
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1400 Lake Hearn Drive
Atlanta, Georgia 30319
(Address of principal executive offices) (Zip code)
-------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY
TO WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------
Name Address
- -----------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of April, 2000.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
----------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
<PAGE> 4
- -------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS In Thousands
<S> <C>
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency
and coin .............................................. $ 3,247,576
Interest-bearing balances ............................... 6,207,543
Securities:
Held-to-maturity securities ............................. 827,248
Available-for-sale securities ........................... 5,092,464
Federal funds sold and Securities purchased
under agreements to resell .............................. 5,306,926
Loans and lease financing receivables:
Loans and leases, net of unearned
income ......................................37,734,000
LESS: Allowance for loan and
lease losses ...................................575,224
LESS: Allocated transfer risk
reserve .........................................13,278
Loans and leases, net of unearned income,
allowance, and reserve ................................ 37,145,498
Trading Assets ............................................. 8,573,870
Premises and fixed assets (including
capitalized leases) ..................................... 723,214
Other real estate owned .................................... 10,962
Investments in unconsolidated subsidiaries
and associated companies ................................ 215,006
Customers' liability to this bank on acceptances
outstanding ............................................. 682,590
Intangible assets .......................................... 1,219,736
Other assets ............................................... 2,542,157
------------
Total assets ............................................... $ 71,794,790
============
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C>
LIABILITIES
Deposits:
In domestic offices ..................................... $ 27,551,017
Noninterest-bearing ..................... 11,354,172
Interest-bearing ........................ 16,196,845
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ................................ 27,950,004
Noninterest-bearing ..................... 639,410
Interest-bearing ........................ 27,310,594
Federal funds purchased and Securities sold
under agreements to repurchase .......................... 1,349,708
Demand notes issued to the U.S.Treasury .................... 300,000
Trading liabilities ........................................ 2,339,554
Other borrowed money:
With remaining maturity of one year or
less .................................................. 638,106
With remaining maturity of more than one
year through three years .............................. 449
With remaining maturity of more than
three years ........................................... 31,080
Bank's liability on acceptances executed and
outstanding ............................................. 684,185
Subordinated notes and debentures .......................... 1,552,000
Other liabilities .......................................... 3,704,252
------------
Total liabilities .......................................... 66,100,355
============
EQUITY CAPITAL
Common stock ............................................... 1,135,284
Surplus .................................................... 866,947
Undivided profits and capital reserves ..................... 3,765,900
Net unrealized holding gains (losses) on
available-for-sale securities ........................... (44,599)
Cumulative foreign currency translation
adjustments ............................................. (29,097)
------------
Total equity capital ....................................... 5,694,435
------------
Total liabilities and equity capital ....................... $ 71,794,790
============
</TABLE>
<PAGE> 6
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to the best
of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true and correct.
Thomas A. Renyi
Alan R. Griffith Directors
Gerald L. Hassell
- -------------------------------------------------------------------------------
<PAGE> 1
EXHIBIT 25.2
===============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
COX RADIO, INC.
(Exact name of obligor as specified in its charter)
Delaware 58-1620022
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1400 Lake Hearn Drive
Atlanta, Georgia 30319
(Address of principal executive offices) (Zip code)
----------------------
Junior Subordinated Debentures
(Title of the indenture securities)
===============================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
Name Address
- ----------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of April, 2000.
THE BANK OF NEW YORK
By: /s/MARY LAGUMINA
---------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
<PAGE> 4
- -------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS In Thousands
<S> <C>
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency
and coin .............................................. $ 3,247,576
Interest-bearing balances ............................... 6,207,543
Securities:
Held-to-maturity securities ............................. 827,248
Available-for-sale securities ........................... 5,092,464
Federal funds sold and Securities purchased
under agreements to resell .............................. 5,306,926
Loans and lease financing receivables:
Loans and leases, net of unearned
income ......................................37,734,000
LESS: Allowance for loan and
lease losses ...................................575,224
LESS: Allocated transfer risk
reserve .........................................13,278
Loans and leases, net of unearned income,
allowance, and reserve ................................ 37,145,498
Trading Assets ............................................. 8,573,870
Premises and fixed assets (including
capitalized leases) ..................................... 723,214
Other real estate owned .................................... 10,962
Investments in unconsolidated subsidiaries
and associated companies ................................ 215,006
Customers' liability to this bank on
acceptances outstanding ................................. 682,590
Intangible assets .......................................... 1,219,736
Other assets ............................................... 2,542,157
------------
Total assets ............................................... $ 71,794,790
============
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
LIABILITIES
Deposits:
In domestic offices ..................................... $ 27,551,017
Noninterest-bearing ...........................11,354,172
Interest-bearing ..............................16,196,845
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ................................ 27,950,004
Noninterest-bearing ..............................639,410
Interest-bearing ..............................27,310,594
Federal funds purchased and Securities sold
under agreements to repurchase .......................... 1,349,708
Demand notes issued to the U.S.Treasury .................... 300,000
Trading liabilities ........................................ 2,339,554
Other borrowed money:
With remaining maturity of one year or
less .................................................. 638,106
With remaining maturity of more than one
year through three years .............................. 449
With remaining maturity of more than
three years ........................................... 31,080
Bank's liability on acceptances executed and
outstanding ............................................. 684,185
Subordinated notes and debentures .......................... 1,552,000
Other liabilities .......................................... 3,704,252
------------
Total liabilities .......................................... 66,100,355
============
EQUITY CAPITAL
Common stock ............................................... 1,135,284
Surplus .................................................... 866,947
Undivided profits and capital reserves ..................... 3,765,900
Net unrealized holding gains (losses) on
available-for-sale securities ........................... (44,599)
Cumulative foreign currency translation
adjustments ............................................. (29,097)
------------
Total equity capital ....................................... 5,694,435
------------
Total liabilities and equity capital ....................... $ 71,794,790
============
</TABLE>
<PAGE> 6
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to the best
of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true and correct.
Thomas A. Renyi
Alan R. Griffith Directors
Gerald L. Hassell
- -------------------------------------------------------------------------------
<PAGE> 1
EXHIBIT 25.3
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
COX RADIO, INC.
(Exact name of obligor as specified in its charter)
Delaware 58-1620022
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1400 Lake Hearn Drive
Atlanta, Georgia 30319
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Trust Preferred Securities of
COX RADIO TRUST I
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE: (A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1
to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of April, 2000.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
----------------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
<PAGE> 4
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS In Thousands
<S> <C>
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency
and coin.......................................... $ 3,247,576
Interest-bearing balances........................... 6,207,543
Securities:
Held-to-maturity securities......................... 827,248
Available-for-sale securities....................... 5,092,464
Federal funds sold and Securities purchased under
agreements to resell................................ 5,306,926
Loans and lease financing receivables:
Loans and leases, net of unearned
income................................. 37,734,000
LESS: Allowance for loan and
lease losses........................... 575,224
LESS: Allocated transfer risk
reserve................................ 13,278
Loans and leases, net of unearned income,
allowance, and reserve............................ 37,145,498
Trading Assets......................................... 8,573,870
Premises and fixed assets (including capitalized
leases)............................................. 723,214
Other real estate owned................................ 10,962
Investments in unconsolidated subsidiaries and
associated companies................................ 215,006
Customers' liability to this bank on acceptances
outstanding......................................... 682,590
Intangible assets...................................... 1,219,736
Other assets........................................... 2,542,157
-----------
Total assets........................................... $71,794,790
===========
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices................................. $27,551,017
Noninterest-bearing.......................11,354,172
Interest-bearing..........................16,196,845
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 27,950,004
Noninterest-bearing..........................639,410
Interest-bearing..........................27,310,594
Federal funds purchased and Securities sold under
agreements to repurchase............................ 1,349,708
Demand notes issued to the U.S.Treasury................ 300,000
Trading liabilities.................................... 2,339,554
Other borrowed money:
With remaining maturity of one year or less......... 638,106
With remaining maturity of more than one year
through three years............................... 449
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 684,185
Subordinated notes and debentures...................... 1,552,000
Other liabilities...................................... 3,704,252
-----------
Total liabilities...................................... 66,100,355
===========
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 866,947
Undivided profits and capital reserves................. 3,765,900
Net unrealized holding gains (losses) on
available-for-sale securities....................... (44,599)
Cumulative foreign currency translation
adjustments.........................................
(29,097)
===========
Total equity capital................................... 5,694,435
-----------
Total liabilities and equity capital................... $71,794,790
===========
</TABLE>
<PAGE> 6
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to the best
of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true and correct.
Thomas A. Renyi
Alan R. Griffith Directors
Gerald L. Hassell
- --------------------------------------------------------------------------------
<PAGE> 1
EXHIBIT 25.4
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
COX RADIO, INC.
(Exact name of obligor as specified in its charter)
Delaware 58-1620022
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1400 Lake Hearn Drive
Atlanta, Georgia 30319
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Trust Preferred Securities of
COX RADIO TRUST II
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE: (A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1
to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of April, 2000.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
----------------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
<PAGE> 4
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS In Thousands
<S> <C>
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency
and coin.......................................... $ 3,247,576
Interest-bearing balances........................... 6,207,543
Securities:
Held-to-maturity securities......................... 827,248
Available-for-sale securities....................... 5,092,464
Federal funds sold and Securities purchased under
agreements to resell................................ 5,306,926
Loans and lease financing receivables:
Loans and leases, net of unearned
income..................................37,734,000
LESS: Allowance for loan and
lease losses...............................575,224
LESS: Allocated transfer risk
reserve.....................................13,278
Loans and leases, net of unearned income,
allowance, and reserve............................ 37,145,498
Trading Assets......................................... 8,573,870
Premises and fixed assets (including capitalized
leases)............................................. 723,214
Other real estate owned................................ 10,962
Investments in unconsolidated subsidiaries and
associated companies................................ 215,006
Customers' liability to this bank on acceptances
outstanding......................................... 682,590
Intangible assets...................................... 1,219,736
Other assets........................................... 2,542,157
-----------
Total assets........................................... $71,794,790
===========
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices................................. $27,551,017
Noninterest-bearing.......................11,354,172
Interest-bearing..........................16,196,845
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 27,950,004
Noninterest-bearing..........................639,410
Interest-bearing..........................27,310,594
Federal funds purchased and Securities sold under
agreements to repurchase............................ 1,349,708
Demand notes issued to the U.S.Treasury................ 300,000
Trading liabilities.................................... 2,339,554
Other borrowed money:
With remaining maturity of one year or less......... 638,106
With remaining maturity of more than one year
through three years............................... 449
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 684,185
Subordinated notes and debentures...................... 1,552,000
Other liabilities...................................... 3,704,252
-----------
Total liabilities...................................... 66,100,355
===========
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 866,947
Undivided profits and capital reserves................. 3,765,900
Net unrealized holding gains (losses) on
available-for-sale securities....................... (44,599)
Cumulative foreign currency translation
adjustments.........................................
(29,097)
-----------
Total equity capital................................... 5,694,435
-----------
Total liabilities and equity capital................... $71,794,790
===========
</TABLE>
<PAGE> 6
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to the best
of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true and correct.
Thomas A. Renyi
Alan R. Griffith Directors
Gerald L. Hassell
- --------------------------------------------------------------------------------
<PAGE> 1
EXHIBIT 25.5
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
COX RADIO TRUST I
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1400 Lake Hearn Drive
Atlanta, Georgia 30319
(Address of principal executive offices) (Zip code)
----------------------
Trust Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE: (A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1
to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of April, 2000.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
-----------------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
<PAGE> 1
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS In Thousands
<S> <C>
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency
and coin.......................................... $ 3,247,576
Interest-bearing balances........................... 6,207,543
Securities:
Held-to-maturity securities......................... 827,248
Available-for-sale securities....................... 5,092,464
Federal funds sold and Securities purchased under
agreements to resell................................ 5,306,926
Loans and lease financing receivables:
Loans and leases, net of unearned
income..................................37,734,000
LESS: Allowance for loan and
lease losses...............................575,224
LESS: Allocated transfer risk
reserve.....................................13,278
Loans and leases, net of unearned income,
allowance, and reserve............................ 37,145,498
Trading Assets......................................... 8,573,870
Premises and fixed assets (including capitalized
leases)............................................. 723,214
Other real estate owned................................ 10,962
Investments in unconsolidated subsidiaries and
associated companies................................ 215,006
Customers' liability to this bank on acceptances
outstanding......................................... 682,590
Intangible assets...................................... 1,219,736
Other assets........................................... 2,542,157
-----------
Total assets........................................... $71,794,790
===========
</TABLE>
<PAGE> 2
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices................................. $27,551,017
Noninterest-bearing.......................11,354,172
Interest-bearing..........................16,196,845
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 27,950,004
Noninterest-bearing..........................639,410
Interest-bearing..........................27,310,594
Federal funds purchased and Securities sold under
agreements to repurchase............................ 1,349,708
Demand notes issued to the U.S.Treasury................ 300,000
Trading liabilities.................................... 2,339,554
Other borrowed money:
With remaining maturity of one year or less......... 638,106
With remaining maturity of more than one year
through three years............................... 449
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 684,185
Subordinated notes and debentures...................... 1,552,000
Other liabilities...................................... 3,704,252
-----------
Total liabilities...................................... 66,100,355
===========
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 866,947
Undivided profits and capital reserves................. 3,765,900
Net unrealized holding gains (losses) on
available-for-sale securities....................... (44,599)
Cumulative foreign currency translation
adjustments.........................................
(29,097)
-----------
Total equity capital................................... 5,694,435
-----------
Total liabilities and equity capital................... $71,794,790
===========
</TABLE>
<PAGE> 3
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to the best
of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true and correct.
Thomas A. Renyi
Alan R. Griffith Directors
Gerald L. Hassell
- --------------------------------------------------------------------------------
<PAGE> 4
EXHIBIT 25.6
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
COX RADIO TRUST II
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1400 Lake Hearn Drive
Atlanta, Georgia 30319
(Address of principal executive offices) (Zip code)
----------------------
Trust Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE> 5
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1
to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
<PAGE> 6
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of April, 2000.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
-----------------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
<PAGE> 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS In Thousands
<S> <C>
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency
and coin.......................................... $3,247,576
Interest-bearing balances........................... 6,207,543
Securities:
Held-to-maturity securities......................... 827,248
Available-for-sale securities....................... 5,092,464
Federal funds sold and Securities purchased under
agreements to resell................................ 5,306,926
Loans and lease financing receivables:
Loans and leases, net of unearned
income..................................37,734,000
LESS: Allowance for loan and
lease losses...............................575,224
LESS: Allocated transfer risk
reserve.....................................13,278
Loans and leases, net of unearned income,
allowance, and reserve............................ 37,145,498
Trading Assets......................................... 8,573,870
Premises and fixed assets (including capitalized
leases)............................................. 723,214
Other real estate owned................................ 10,962
Investments in unconsolidated subsidiaries and
associated companies................................ 215,006
Customers' liability to this bank on acceptances
outstanding......................................... 682,590
Intangible assets...................................... 1,219,736
Other assets........................................... 2,542,157
-----------
Total assets........................................... $71,794,790
===========
</TABLE>
<PAGE> 8
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices................................. $27,551,017
Noninterest-bearing.......................11,354,172
Interest-bearing..........................16,196,845
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 27,950,004
Noninterest-bearing..........................639,410
Interest-bearing..........................27,310,594
Federal funds purchased and Securities sold under
agreements to repurchase............................ 1,349,708
Demand notes issued to the U.S.Treasury................ 300,000
Trading liabilities.................................... 2,339,554
Other borrowed money:
With remaining maturity of one year or less......... 638,106
With remaining maturity of more than one year
through three years............................... 449
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 684,185
Subordinated notes and debentures...................... 1,552,000
Other liabilities...................................... 3,704,252
-----------
Total liabilities...................................... 66,100,355
===========
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 866,947
Undivided profits and capital reserves................. 3,765,900
Net unrealized holding gains (losses) on
available-for-sale securities....................... (44,599)
Cumulative foreign currency translation
adjustments.........................................
(29,097)
-----------
Total equity capital................................... 5,694,435
-----------
Total liabilities and equity capital................... $71,794,790
===========
</TABLE>
<PAGE> 9
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to the best
of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true and correct.
Thomas A. Renyi
Alan R. Griffith Directors
Gerald L. Hassell
- --------------------------------------------------------------------------------
