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Registration Statement No. 333-
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SECURITIES AND EXCHANGE COMMISSION
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FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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THE WASHINGTON POST COMPANY
(Exact name of Registrant as specified in its charter)
DELAWARE 53-0182885
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1150 15th Street, N.W.,
Washington, D.C. 20071
(202) 334-6000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Diana M. Daniels
Vice President,
General Counsel and Secretary
The Washington Post Company
1150 15th Street, N.W.
Washington, D.C. 20071
(202) 334-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
with copies to:
Gregory M. Shaw, Esq.
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
(212) 474-1966
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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 and other factors.
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If the only securities being registered on this Form are to be 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, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] __________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [x]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING PRICE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (A) PER UNIT (B) (A)(B) REGISTRATION FEE
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Debt Securities....................... $400,000,000 100% $400,000,000 $111,200
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(A) The initial public offering price of any Debt Securities
denominated in any foreign currencies or currency units shall be
the U.S. dollar equivalent thereof based on the prevailing
exchange rates at the respective times such Debt Securities are
first offered. For Debt Securities issued with an original issue
discount, the amount to be registered is calculated as the initial
accreted value of such Debt Securities.
(B) Estimated solely for purposes of calculating the registration fee.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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PROSPECTUS
THE WASHINGTON POST COMPANY
1150 15th Street, N.W. Washington, D.C. 20071
(202) 334-6000
$400,000,000
DEBT SECURITIES
The Washington Post Company may offer from time to time its unsecured
debt securities consisting of notes, debentures or other evidences of
indebtedness. Up to $400,000,000 principal amount, or the equivalent thereof in
one or more foreign currencies or currency units, may be issued.
The terms of each series of debt securities will be set forth in a
Prospectus Supplement. You should read this Prospectus and the Prospectus
Supplement carefully.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THE SECURITIES TO BE ISSUED
UNDER THIS PROSPECTUS OR DETERMINED IF THIS PROSPECTUS IS ACCURATE OR ADEQUATE.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The Washington Post Company may sell debt securities directly, through
agents or through underwriters or dealers.
The date of this Prospectus is , 1998
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ABOUT THIS PROSPECTUS
This Prospectus is part of a Registration Statement that we filed with
the Securities and Exchange Commission (the "Commission") utilizing a "shelf"
registration process. Under this shelf process, we may, from time to time over
approximately the next two years, sell debt securities described in this
Prospectus in one or more offerings up to a total dollar amount of $400,000,000
or the equivalent of this amount in foreign currencies or foreign currency
units.
This Prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a Prospectus
Supplement that will contain specific information about the terms of that
offering. The Prospectus Supplement may also add, update or change information
contained in this Prospectus. You should read both this Prospectus and any
Prospectus Supplement together with additional information described under the
heading "Where You Can Find More Information" beginning on page 2 of this
Prospectus.
You should rely only on the information provided in this Prospectus and
in any Prospectus Supplement, including the information incorporated by
reference. We have not authorized anyone to provide you with different
information. We are not offering the securities in any state where the offer is
not permitted. You should not assume that the information in this Prospectus, or
any supplement to this Prospectus, is accurate at any date other than the date
indicated on the cover page of these documents.
WHERE YOU CAN FIND MORE INFORMATION
The Company has filed with the Commission a Registration Statement under
the Securities Act that registers the distribution of the debt securities (the
"Registration Statement"). The Registration Statement, including the attached
exhibits and schedules, contains additional relevant information about the
Company and the Company's securities. The rules and regulations of the
Commission allow us to omit certain information included in the Registration
Statement from this Prospectus.
In addition, we file reports, proxy statements and other information with
the Commission under the Exchange Act. You may read and copy this information at
the following locations of the SEC.
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Chicago Regional Office
Public Reference Room New York Regional Office Citicorp Center
450 Fifth Street, N.W. 7 World Trade Center 500 West Madison Street
Room 1024 Suite 1300 Suite 1400
Washington, D.C. 20549 New York, New York 10048 Chicago, Illinois 60661-2511
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You may also obtain copies of this information by mail from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, at prescribed rates. You may obtain information on the
operation of the Public Reference Room by calling the Commission at
1-800-SEC-0330.
The Commission also maintains an Internet world wide website that
contains reports, proxy statements and other information about issuers, like the
Company, who file electronically with the Commission. The address of that site
is http://www.sec.gov.
You can also inspect reports, proxy statements and other information
about the Company at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York.
The Commission allows us to "incorporate by reference" information into
this Prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the Commission. The
information incorporated by reference is considered to be a part of this
Prospectus, except for any information that is superseded by information that is
included directly in this document.
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This Prospectus incorporates by reference the documents listed below that
the Company has previously filed with the Commission. They contain important
information about us and our predecessors.
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Company SEC Filings Period
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Annual Report on Form 10-K............................... Year ended December 28, 1997
Quarterly Reports on Form 10-Q........................... Quarters ended March 29, 1998, June 28, 1998
and September 27, 1998
Current Report on Form 8-K............................... Dated March 20, 1998
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The Company incorporates by reference additional documents that it may
file with the Commission between the date of this Prospectus and the termination
of the offering of the debt securities. These documents include periodic
reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K, as well as proxy statements.
You can obtain any of the documents incorporated by reference in this
document through us, or from the Commission through the Commission's web site at
the address described above. Documents incorporated by reference are available
from us without charge, excluding any exhibits to those documents unless the
exhibit is specifically incorporated by reference as an exhibit in this
Prospectus. You can obtain documents incorporated by reference in this
Prospectus by requesting them in writing or by telephone from us at the
following addresses:
Investor Relations
The Washington Post Company
1150 15th Street N.W.
Washington, D.C. 20071
(202) 334-6000
If you request any incorporated documents from us, we will mail them to
you by first class mail, or another equally prompt means, within one business
day after we receive your request.
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THE COMPANY
The Washington Post Company (the "Company") is a diversified media
organization whose principal operations consist of newspaper publishing
(primarily The Washington Post newspaper), television broadcasting (through the
ownership and operation of six network-affiliated television stations), the
ownership and operation of cable television systems, and magazine publishing
(primarily Newsweek magazine). The Company also produces news and other
information products for electronic distribution and provides test preparation
and related services.
The Company was incorporated in 1947 under the laws of the State of
Delaware. Its executive offices are located at 1150 15th Street, N.W.,
Washington, D.C. 20071, and its telephone number is (202) 334-6000.
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the debt
securities offered by this Prospectus (the "Debt Securities") for general
corporate purposes. These may include:
- capital expenditures
- possible acquisitions
- repurchase of the Company's stock
- payment of other debt
- other purposes as may be stated in the Prospectus Supplement
The Company expects to engage in additional financings on a recurring
basis. The character and amount of financings will be determined as the need
arises.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges has been computed by dividing
"earnings available for fixed charges" by "fixed charges." For purposes of
computing this ratio, "earnings available for fixed charges" principally
consists of (i) income before income taxes, the cumulative effect of changes in
accounting principles, and equity in earnings of unconsolidated subsidiaries,
plus (ii) "fixed charges" (excluding capitalized interest). "Fixed charges"
principally consists of interest expense and the portion of rental expense that
is representative of the interest factor (deemed by the Company to be
one-third).
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Thirty-Nine Weeks Ended Fiscal Year Ended
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September 27, September 28, December 28, December 29, December 31, January 1, January 2,
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1998 1997 1997 1996 1995 1995 1994
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Ratio of earnings to
fixed charges........... 29.9 (a) 33.1 (b) 37.2 (c) 32.3 22.9 22.5 22.7 (d)
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a- For the thirty-nine weeks ended September 27, 1998, the Company's
pre-tax income included non-recurring gains of approximately
$308.5 million arising from the disposition of the Company's
investment interests in Cowles Media Company and Junglee
Corporation and the sale of the assets of 14 small cable
television systems. Excluding these gains, the ratio of earnings
to fixed charges would have been 14.0.
b- For the thirty-nine weeks ended September 28, 1997, pre-tax income
included a non-recurring gain of approximately $24.8 million
resulting from the sale of the assets of the Company's PASS Sports
subsidiary. Excluding this gain, the ratio would have been 30.5.
c- For the fiscal year ended December 28, 1997, pre-tax income
included non-recurring gains of approximately $71.1 million
resulting from the sale of the assets of the Company's PASS Sports
subsidiary and the Company's investment interests in Bear Island
Paper Company, L.P. and Bear Island Timberlands Company, L.P.
Excluding these gains, the ratio would have been 31.5.
d- For the fiscal year ended January 2, 1994, pre-tax income included
a non-recurring gain of approximately $20.5 million arising from
the sale of the Company's cable franchises in the United Kingdom.
Excluding this gain, the ratio would have been 21.0.
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DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities will be issued under an Indenture (the "Indenture")
between the Company and The First National Bank of Chicago, as Trustee (the
"Trustee"). The Indenture was filed as an exhibit to the Registration Statement.
The Debt Securities may be issued from time to time in one or more series. The
particular terms of each series will be described in a Prospectus Supplement.
The following statements are subject to the detailed provisions of the
Indenture. The sections of the Indenture specifically referred to in the
following discussion are incorporated by reference. Capitalized terms that are
not defined in the following discussion have the meanings assigned to them in
the Indenture.
GENERAL
Debt Securities may be issued from time to time under the Indenture in an
unlimited aggregate principal amount and an unlimited number of series.
The Debt Securities are unsecured and will have the same rank as all
other unsecured and nonsubordinated debt of the Company.
The Prospectus Supplement relating to the series of Debt Securities which
it offers describes (Sections 202 and 301):
(1) the title of the Debt Securities of such series;
(2) any limit upon the aggregate principal amount of such Debt
Securities;
(3) the person to whom the interest on a Debt Security of any series
will be payable if not the person in whose name that Debt Security
is registered on the regular record date;
(4) the date or dates on which such Debt Securities will mature or the
method of determination of such date or dates;
(5) the rate or rates, or the method of determination thereof, at
which such Debt Securities will bear interest, if any, the date or
dates from which such interest will accrue, the date or dates such
interest will be payable and, for Registered Debt Securities (as
defined below), the Regular Record Dates;
(6) the place or places where the principal of, and premium and
interest, if any, on, such Debt Securities will be payable;
(7) the periods, prices and terms and conditions upon which any such
Debt Security may be redeemed, in whole or in part, at the option
of the Company;
(8) any terms for redemption or repurchase pursuant to any sinking
fund or analogous provision or the option of a Holder;
(9) any terms for conversion of the Debt Securities into other
securities of the Company or any other corporation at the option
of a Holder;
(10) any terms for the attachment to such Debt Securities of warrants,
options or other rights to purchase or sell stock or other
securities of the Company;
(11) if other than the principal amount thereof, the portion of the
principal amount of such Debt Securities that will be payable upon
acceleration of maturity (Debt Securities subject to such
provisions being referred to as "Original Issue Discount
Securities");
(12) any deletions or modifications of, or additions to, the Events of
Default or covenants of the Company under the Indenture with
respect to such Debt Securities (including whether the covenants
described below under "Certain Covenants of the Company" will not
apply to such Debt Securities);
(13) if other than U.S. dollars, the currency, currencies or currency
unit or units in which such Debt Securities will be denominated
and in which the principal of, and premium and interest, if any,
on, such Securities will be payable;
(14) whether, and the terms and conditions on which, the Company or a
Holder may elect that, or the other circumstances under which,
payment of principal of, or premium or interest, if any, on, such
Debt Securities is to be made in a currency or currencies or
currency unit or units other than that in which such Debt
Securities are denominated;
(15) any matter of determining the amount of principal of, or premium
or interest, if any, on, any such Debt Securities to be determined
with reference to an index based on a currency or
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currency unit or units other than that in which such Debt
Securities are stated to be payable or an index based on any other
method;
(16) whether such Debt Securities will be issued in fully registered
form without coupons ("Registered Debt Securities") or in bearer
form with or without coupons ("Bearer Debt Securities"), or any
combination thereof, whether such Debt Securities will be issued
in the form of one or more global securities (each a "Global Debt
Security") and whether such Debt Securities are to be issuable in
temporary global form or definitive global form;
(17) if such Debt Securities are to be issued upon the exercise of
warrants, the time, manner and place for such Debt Securities to
be authenticated and delivered;
(18) whether and under what circumstances the Company will pay
additional amounts to any holder of such Debt Securities who is
not a United States person (as defined below under "Temporary
Global Securities") in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether and
on what terms the Company will have the option to redeem such Debt
Securities rather than pay any additional amounts; and
(19) any other terms of any of such Debt Securities not inconsistent
with the Indenture.
Most Debt Securities will be issued as Registered Debt Securities.
Registered Debt Securities denominated in U.S. dollars will be issued in
denominations of $1,000 or an integral multiple of $1,000. Bearer Debt
Securities denominated in U.S. dollars will be issued in denominations of
$5,000. Debt Securities may bear legends required by United States Federal tax
law and regulations. (Section 401)
If any series of the Debt Securities are sold for any foreign currency or
currency unit or if the principal of, or premium or interest on, any series of
the Debt Securities is payable in any foreign currency or currency unit, the
restrictions, elections, tax consequences, specific terms and other information
with respect to such series of the Debt Securities and such foreign currency or
currency unit will be set forth in the Prospectus Supplement relating to that
series.
CERTAIN COVENANTS OF THE COMPANY
Limitation on Merger, Consolidation and Certain Sale of Assets. The
Company will covenant that it will not merge into or consolidate with any other
corporation, or convey or transfer all or substantially all its properties and
assets as an entirety to, any person unless:
(a) the successor is a U.S. corporation, partnership, limited
liability company, trust or other entity,
(b) the successor assumes on the same terms and conditions all the
obligations under the Debt Securities and the Indenture, and
(c) immediately after giving effect to the transaction, there is no
default under the Indenture. (Section 901)
Upon such merger, consolidation, conveyance or transfer, the successor will
succeed to, and will be substituted in lieu of, the Company. (Section 902)
Event Risk. Except for the limitations on Secured Indebtedness and Sale
and Leaseback Transactions described below, the Indenture and Debt Securities do
not contain any covenants or other provisions designed to afford holders of the
Debt Securities protections in the event of a highly leveraged transaction
involving the Company.
Limitation on Secured Indebtedness. The Indenture provides that the
Company will not, and will not permit any Restricted Subsidiary to, create,
assume, incur or guarantee any Secured Indebtedness without securing the Debt
Securities equally and ratably with, or prior to, such Secured Indebtedness
unless immediately thereafter the aggregate amount of all outstanding Secured
Indebtedness (exclusive of Secured Indebtedness if the Debt Securities are
secured equally and ratably with, or prior to, such Secured Indebtedness) and
the discounted present value determined as set forth in the Indenture of all net
rentals payable under existing leases entered into in connection with Sale and
Leaseback Transactions (as defined below) entered into after (except
any such leases entered into by a Restricted Subsidiary before the time it
became a Restricted Subsidiary) would not exceed 15% of Consolidated Net Worth.
(Section 1104)
Limitation on Sale and Leaseback Transactions. The Indenture provides
that the Company will not, and will not permit any Restricted Subsidiary to,
enter any lease longer than three years (excluding leases of newly acquired,
improved or constructed property) covering any Principal Property of the Company
or any Restricted Subsidiary that is sold to any other person in connection with
such lease (a "Sale and Leaseback Transaction"), unless either:
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(a) immediately thereafter, the sum of:
(i) the discounted present value determined as set forth in the
Indenture of all net rentals payable under all such existing leases
entered into after (except any such leases entered into by a
Restricted Subsidiary before the time it became a Restricted Subsidiary),
and
(ii) the aggregate amount of all outstanding Secured
Indebtedness (exclusive of Secured Indebtedness if the Debt Securities
are secured equally and ratably with, or prior to, such Secured
Indebtedness)
does not exceed 15% of Consolidated Net Worth; or
(b) an amount equal to the greater of:
(i) the net proceeds to the Company or a Restricted Subsidiary
from such sale, and
(ii) the discounted present value determined as set forth in the
Indenture of all net rentals payable thereunder
is applied within 180 days to the retirement of long-term debt of the
Company or a Restricted Subsidiary (other than such debt which is
subordinated to the Debt Securities or which is owing to the Company or a
Restricted Subsidiary). (Section 1105)
Certain Definitions Used in The Covenants. The Indenture defines some of
the terms used in the Covenants as follows:
"Secured Indebtedness" will mean indebtedness of the Company or any
Restricted Subsidiary for borrowed money secured by any lien upon (or in
respect of any conditional sale or other title retention agreement
covering) any Principal Property or any stock or indebtedness of a
Restricted Subsidiary, but excluding from such definition all
indebtedness: (i) outstanding on , secured by liens (or arising from
conditional sale or other title retention agreements) existing on that
date; (ii) incurred after to finance the acquisition,
improvement or construction of property and either secured by purchase
money mortgages or liens placed on such property within 180 days of
acquisition, improvement or construction or arising from conditional sale
or other title retention agreements; (iii) secured by liens on Principal
Property or on the stock or indebtedness of Restricted Subsidiary, and,
in either case, existing at the time of acquisition thereof; (iv) owing
to the Company or any Restricted Subsidiary; (v) secured by liens (or
conditional sale or other title retention devices) existing at the time a
corporation became or becomes a Restricted Subsidiary in the case of a
corporation which shall have become or becomes a Restricted Subsidiary
after ; (vi) arising from any Sale and Leaseback Transaction; (vii)
incurred to finance the acquisition or construction of property secured
by liens in favor of any country or any political subdivision thereof;
and (viii) constituting any replacement, extension or renewal of any such
indebtedness (to the extent such indebtedness is not increased).
"Principal Property" will mean all land, land improvements, buildings,
machinery and equipment constituting a manufacturing facility, a printing
facility, a warehouse facility, a distribution facility, a television
broadcast facility, a cable television facility or an office facility
(including any portion thereof) which facility is owned by or leased to
the Company or a Restricted Subsidiary, is located within the United
States and has an acquisition cost plus capitalized improvements in
excess of 1% of Consolidated Net Worth as of the date of such
determination, other than any such facility financed through the issuance
of tax-exempt governmental obligations, or which the Board of Directors
determines is not of material importance to the Company and its
Restricted Subsidiaries taken as a whole, or in which the interest of the
Company and all its Subsidiaries does not exceed 50%.
"Consolidated Net Worth" will mean, at the date of any determination, the
consolidated stockholders' or owners' equity of the Company and its
subsidiaries, determined on a consolidated basis in accordance with
generally accepted accounting principles consistently applied.
"Restricted Subsidiary" will mean any Subsidiary of the Company which has
substantially all its property in the United States, which transacts
substantially all its business in the United States, and which owns or is
a lessee of any Principal Property. Subsidiaries organized or acquired
after for the purpose of acquiring the stock, business or assets
of any person other than the Company or any Restricted Subsidiary and
which (after giving effect to such acquisition) have consolidated total
assets of not more that 10% of the consolidated total assets of the
Company and its subsidiaries are excluded from the definition of
Restricted Subsidiary.
"Subsidiary" will mean any corporation a majority of the voting shares of
which are at the time owned or controlled, directly or indirectly, by the
Company or by one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
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The Indenture provides that the Company may omit to comply with the
restrictive covenants described above under "Limitation on Secured Indebtedness"
and "Limitation on Sale and Leaseback Transactions" if the holders of not less
than a majority in principal amount of all series of outstanding Debt Securities
affected thereby (acting as one class) waive compliance with such restrictive
covenants. (Section 1107)
EXCHANGE, REGISTRATION AND TRANSFER
Registered Debt Securities of any series will be exchangeable for other
Registered Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations. If Debt Securities of
any series are issuable as both Registered Debt Securities and Bearer Debt
Securities, the Bearer Debt Securities of such series (with all unmatured
coupons, except as provided below, and all matured coupons in default) will be
exchangeable for Registered Debt Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor. If a Bearer
Debt Security with coupons appertaining thereto is surrendered in exchange for a
Registered Debt Security after a Regular Record Date or Special Record Date and
before the relevant date for payment of interest, such Bearer Debt Security
shall be surrendered without the coupon relating to such date for payment of
interest and interest will not be payable on such date in respect of the
Registered Debt Security issued in exchange for such Bearer Debt Security, but
will be payable only to the holder of such coupon when due in accordance with
the terms thereof and of the Indenture. Bearer Debt Securities will not be
issued in exchange for Registered Debt Securities (unless otherwise specified in
the applicable Prospectus Supplement and permitted by applicable rules and
regulations). No service charge will be made for any transfer or exchange of the
Debt Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge in connection therewith. (Section
404)
Debt Securities may be presented for exchange as provided above, and
Registered Debt Securities (other than U.S. Book-Entry Debt Securities (as
defined below under "Definitive Global Securities--U.S. Book-Entry Securities"))
may be presented for registration of transfer (with the form of transfer
endorsed thereon duly executed), at the office of the Security Registrar or at
the office of any additional transfer agent designated by the Company for such
purpose with respect to any series of Debt Securities and referred to in the
applicable Prospectus Supplement. (Sections 404 and 1102) The First National
Bank of Chicago, currently located at 153 West 51st Street, New York, New York
10019, will be the initial Security Registrar under the Indenture. (Section 404)
The Company may at any time designate, or rescind the designation of, the
Security Registrar or any additional transfer agent or approve a change in the
location through which the Security Registrar or any such transfer agent acts,
except that, if Debt Securities of a series are issuable solely as Registered
Debt Securities, the Company will be required to maintain a transfer agent in
each Place of Payment for such series and, if Debt Securities of a series are
issuable as both Registered Debt Securities and Bearer Debt Securities or solely
as Bearer Debt Securities, the Company will be required to maintain (in addition
to the Security Registrar) a transfer agent in a Place of Payment for such
series located outside of the United States. The Company may at any time
designate additional transfer agents with respect to any series of Debt
Securities. (Section 1102)
In the event of any redemption in part of any series of Debt Securities,
the Company will not be required to: (i) issue, register the transfer of, or
exchange, Debt Securities of any series during a period beginning at the opening
of business 15 Business Days before any selection of Debt Securities of that
series to be redeemed and ending at the close of business on (a) if Debt
Securities of the series are issuable only as Registered Debt Securities, the
day of mailing of the relevant notice of redemption and (b) if Debt Securities
of the series are issuable as Bearer Debt Securities, the day of the first
publication of the relevant notice of redemption or, if Debt Securities of the
series are also issuable as Registered Debt Securities and there is no
publication, the day of mailing of the relevant notice of redemption; (ii)
register the transfer of, or exchange, any Registered Debt Security selected for
redemption, in whole or in part, except the unredeemed portion of any Registered
Debt Security being redeemed in part; or (iii) exchange any Bearer Debt Security
selected for redemption, except to exchange such Bearer Debt Security for a
Registered Debt Security of that series and like tenor which is simultaneously
surrendered for redemption. (Section 404)
For a discussion of restrictions on the exchange, registration and
transfer of Global Debt Securities, see "Global Securities" below.
PAYMENT AND PAYING AGENTS
Payment of principal of, and premium and interest, if any, on, Registered
Debt Securities will be made in the designated currency or currency unit at the
office of such Paying Agent or Paying Agents as the Company may designate from
time to time. At the option of the Company, payment of any interest on
Registered Debt Securities may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register.
Payment of any installment of interest on Registered Debt Securities will be
made to the person in whose name such Registered Debt Security is registered at
the close of business on the Regular Record Date for such interest.
(Sections 406 and 410.)
Payment of principal of, and premium and interest, if any, on, Bearer
Debt Securities will be made in the designated currency unit at the offices of
such Paying Agents outside the United States as the Company may designate from
time to time. On the applicable payment date therefor, payments of principal
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of, and premium, if any, on, Bearer Debt Securities will be made against
surrender of such Debt Securities, and payment of interest on Bearer Debt
Securities with coupons appertaining thereto on any Interest Payment Date will
be made only against surrender of the coupon relating to such Interest Payment
Date. (Sections 410 and 1102) No payment with respect to any Bearer Debt
Security will be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
any account maintained with a bank located in the United States. Notwithstanding
the foregoing, payments of principal of, and premium and interest, if any, on,
Bearer Debt Securities denominated and payable in U.S. dollars will be made at
the office of the Company's Paying Agent in the Borough of Manhattan, The City
of New York, if (but only if) payment of the full amount thereof in U.S. dollars
at all offices or agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions. (Section 1102)
The First National Bank of Chicago will be designated as the Company's
Paying Agent for payments with respect to Debt Securities that are issuable
solely as Registered Debt Securities and as the Company's Paying Agent in the
Borough of Manhattan, The City of New York for payments with respect to Debt
Securities (subject to the limitations described above in the case of Bearer
Debt Securities) that are issuable solely as Bearer Debt Securities or as both
Registered Debt Securities and Bearer Debt Securities. Any Paying Agents outside
the United States and any other Paying Agents in the United States initially
designated by the Company for the Debt Securities of a series will be named in
the applicable Prospectus Supplement. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts, except that,
if Debt Securities of a series are issuable solely as Registered Debt
Securities, the Company will be required to maintain a Paying Agent in each
Place of Payment for such series and, if Debt Securities of a series are
issuable as both Registered Debt Securities or Bearer Debt Securities or solely
as Bearer Debt Securities, the Company will be required to maintain (i) a Paying
Agent in the Borough of Manhattan, The City of New York for payments with
respect to any Registered Debt Securities of the series (and for payments with
respect to Bearer Debt Securities of the series in the circumstances described
above, but not otherwise), and (ii) a Paying Agent in a Place of Payment located
outside the United States where Debt Securities of such series and any coupons
appertaining thereto may be presented and surrendered for payment; provided that
if the Debt Securities of such series are listed on any stock exchange located
outside the United States and such stock exchange shall so require, the Company
will maintain a Paying Agent in any required city located outside the United
States for the Debt Securities of such series. (Section 1102)
All moneys deposited with the Trustee or a Paying Agent, or then held by
the Company, in trust for the payment of principal of, and premium and interest,
if any, on, any Debt Security or coupon that remains unclaimed at the end of two
years after such principal, premium or interest shall have become due and
payable will be repaid to the Company, or, if then held by the Company,
discharged from such trust, and the holder of such Debt Security or coupon will
thereafter look only to the Company for payment thereof. (Section 1103)
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part as one
or more Global Debt Securities in either registered or bearer form and in either
temporary or definitive form. The Global Debt Security or Securities of a series
will be deposited with, or on behalf of, a depositary located in the United
States (a "U.S. Depositary") or a common depositary located outside the United
States (a "Common Depositary") identified in the Prospectus Supplement relating
to such series. All temporary or definitive Global Debt Securities in bearer
form will be deposited with a Common Depositary.
The specific terms of the depositary arrangement with respect to any Debt
Securities of a series issued in global form will be described in the Prospectus
Supplement relating to such series. For purposes other than making payments on a
definitive Global Debt Security, the Company may treat a person having a
beneficial interest in such definitive Global Debt Security as the holder of
such principal amount of Outstanding Debt Securities represented by such
definitive Global Debt Security as shall be specified in a written statement of
the holder of such definitive Global Debt Security, or, in the case of a
definitive Global Debt Security in bearer form, of Euro-clear or CEDEL (as
defined below), which is delivered to the Trustee by such person. (Section 411)
None of the Company, the Trustee, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in a Global
Debt Security or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests. (Section 411) The Company anticipates
that the following provisions will apply to all depositary arrangements with a
U.S. Depositary or Common Depositary.
TEMPORARY GLOBAL SECURITIES
All or any portion of a series of Bearer Debt Securities initially may be
represented by one or more temporary Global Debt Securities, without interest
coupons. Temporary Global Securities will be deposited with a Common Depositary
in London for Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euro-clear System ("Euro-clear"), and CEDEL S.A. ("CEDEL") for
credit to the respective accounts of the beneficial owners of such Debt
Securities (or to such other accounts as they may direct). On and after the
exchange date determined as provided in any such temporary Global Debt Security
<PAGE> 11
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and described in the applicable Prospectus Supplement, each such temporary
Global Debt Security will be exchangeable for definitive Debt Securities in
bearer form, registered form, definitive global bearer form or any combination
thereof, as specified in the applicable Prospectus Supplement. No Bearer Debt
Security (including a Debt Security in definitive global bearer form) delivered
in exchange for a portion of a temporary Global Debt Security will be mailed or
otherwise delivered to any location in the United States in connection with such
exchange. (Sections 402 and 403)
Interest on any portion of a temporary Global Debt Security payable in
respect of an Interest Payment Date occurring before definitive Debt Securities
are issued will be paid to each of Euro-clear and CEDEL with respect to the
portion of the temporary Global Debt Security held for its account. Prior to
making such interest payment, the Trustee must receive a signed certificate from
Euro-Clear or CEDEL in the form required by the Indenture dated no earlier than
such Interest Payment Date. The certificate must be based on statements provided
to Euro-Clear or CEDEL by its account holders who are beneficial owners of
interests in such temporary Global Debt Security to the effect that such portion
is not beneficially owned by a United States person, and has not been acquired
by or on behalf of a United States person or for offer to resell or for resale
to a United States person or any person inside the United States or, if a
beneficial interest in such portion has been acquired by a United States person,
(i) that such person is a financial institution, as defined in applicable
regulations promulgated under the Internal Revenue Code of 1986, as amended (the
"Code"), purchasing for its own account or has acquired such Debt Security
through a financial institution and (ii) that such Debt Securities are held by a
financial institution that has agreed in writing to comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Code and the regulations thereunder
and that it did not purchase for offer to resell or for resale inside the United
States. Each of Euro-clear and CEDEL will in such circumstances credit the
interest received by it in respect of such temporary Global Debt Security to the
accounts of the beneficial owners thereof (or to such other accounts as they may
direct). (Section 403)
As used herein, "United States person" means a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States or an estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source, and "United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
DEFINITIVE GLOBAL SECURITIES
BEARER SECURITIES. If any Debt Securities of a series are issuable in
definitive global bearer form, the applicable Prospectus Supplement will
describe the circumstances, if any, under which beneficial owners of interests
in any such definitive global Bearer Debt Security may exchange such interests
for Debt Securities of such series and of like tenor and principal amount in any
authorized form and denomination. No Bearer Debt Security delivered in exchange
for a portion of a definitive Global Debt Security will be mailed or otherwise
delivered to any location in the United States in connection with such exchange.
(Section 404) Principal of, and premium and interest, if any, on, a definitive
global Bearer Debt Security will be payable in the manner described in the
applicable Prospectus Supplement.
U.S. BOOK-ENTRY SECURITIES. If Debt Securities of a series are to be
represented by a definitive global Registered Debt Security to be deposited with
or on behalf of a U.S. Depositary, such Debt Securities ("U.S. Book-Entry Debt
Securities") will be represented by a definitive Global Debt Security registered
in the name of the U.S. Depositary or its nominee. Upon the issuance of a
definitive Global Debt Security registered in the name of the U.S. Depositary,
the U.S. Depositary will credit, on its book-entry registration and transfer
system, the respective principal amounts of the U.S. Book-Entry Debt Securities
represented by such Global Debt Security to the accounts of institutions that
have accounts with such depositary or its nominee ("participants"). The accounts
to be credited shall be designated by the underwriters or agents for the sale of
such U.S. Book-Entry Debt Securities or by the Company, if such Debt Securities
are offered and sold directly by the Company. Ownership of U.S. Book-Entry Debt
Securities will be limited to participants or persons that may hold interests
through participants. Ownership of U.S. Book-Entry Debt Securities will be shown
on, and the transfer of that ownership will be effected only through, records
maintained by the U.S. Depositary or its nominee for the applicable definitive
Global Security or by participants or persons that hold through participants. So
long as the U.S. Depositary, or its nominee, is the registered owner of such
global Debt Security, such depositary or such nominee, as the case may be, will
be considered the sole owner or holder of the U.S. Book-Entry Debt Securities
represented by such Global Debt Security for all purposes under the Indenture.
Payment of principal of, and premium and interest, if any, on, U.S. Book-Entry
Debt Securities will be made to the U.S. Depositary or its nominee, as the case
may be, as the registered owner or the holder of the Global Debt Security
representing such U.S. Book-Entry Debt Securities. Owners of U.S. Book-Entry
Debt Securities will not be entitled to have such Debt Securities registered in
their names in the Security Register, 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 thereof under the Indenture. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws impair
the ability to purchase or transfer U.S. Book-Entry Debt Securities.
The Company expects that the U.S. Depositary for U.S. Book-Entry Debt
Securities of a series, upon receipt of any payment of principal of, or premium
or interest, if any, on, the related definitive Global
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Debt Security, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Debt Security as shown on the records of such Depositary.
The Company also expects that payments by participants to owners of beneficial
interests in such Global Debt Security held through such participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name", and will be the responsibility of such participants.
SATISFACTION AND DISCHARGE; DEFEASANCE
At the request of the Company, the Indenture will cease to be in effect
as to the Debt Securities of any series (except for certain obligations to
register the transfer or exchange of such Debt Securities and related coupons,
if any, and hold moneys for payment of such Debt Securities and coupons in
trust) when either (a) all such Debt Securities and coupons have been delivered
to the Trustee for cancellation or (b) all such Debt Securities and coupons have
become due and payable or will become due and payable at their stated maturity
within one year, or are to be called for redemption within one year, and the
Company has deposited with the trustee, in trust money, in the currency,
currencies or currency unit or units in which such Debt Securities are payable,
in an amount sufficient to pay all the principal of, and premium and interest,
if any, on, such Debt Securities on the dates such payments are due in
accordance with the terms of such Debt Securities. (Section 501)
The Company may defease any series of Debt Securities and, at its option,
either (a) be Discharged after 90 days from any and all obligations in respect
of such series of Debt Securities (except for certain obligations to register
the transfer of or exchange Debt Securities and related coupons, replace stolen,
lost or mutilated Debt Securities and coupons, maintain paying agencies and hold
moneys for payment in trust) or (b) eliminate the requirement to comply with
certain restrictive covenants of the Indenture in respect of such series
(including those described under "Certain Covenants of the Company"). In order
to exercise either defeasance option, the Company must deposit with the trustee
in trust, money, or, in the case of Debt Securities and coupons denominated in
U.S. dollars, U.S. Government Obligations or, in the case of Debt Securities and
coupons denominated in a foreign currency, Foreign Government Securities, which
through the payment of interest thereon and principal thereof in accordance with
their terms will provide money, in an amount sufficient to pay in the currency,
currencies or currency unit or units in which such Debt Securities are payable
all the principal (including any mandatory sinking fund payments) of, and
interest on, such series on the dates such payments are due in accordance with
the terms of such series. Among the conditions to the Company's exercising any
such option, the Company is required to deliver to the Trustee an opinion of
counsel to the effect that the deposit and related defeasance would not cause
the holders of such series to recognize income, gain or loss for United States
Federal income tax purposes and that the holders of such series will be subject
to United States Federal income tax in the same amounts, in the same manner and
at the same times as would have been the case if such option had not been
exercised. (Section 503)
EVENTS OF DEFAULT, NOTICE AND WAIVER
The Indenture provides that, if an Event of Default specified therein
with respect to any series of Debt Securities shall have happened and be
continuing, either the Trustee or the holders of 25% in principal amount of the
outstanding Debt Securities of such series (in the case of certain events of
bankruptcy, insolvency and reorganization, voting as one class with all other
outstanding Debt Securities) may declare the principal of all the Debt
Securities of such series, together with accrued interest thereon, if any, to be
immediately due and payable by notice in writing to the Company (and to the
Trustee if given by the holders). (Section 602)
Events of Default in respect of any series are defined in the Indenture
as being:
- default for 30 days in payment of any interest installment when
due;
- default in payment of principal of, or premium, if any, on, Debt
Securities of such series when due (other than any sinking fund
payments) at their stated maturity, by declaration, when called
for redemption or otherwise;
- default for 30 days in the making of any sinking fund payment when
due;
- default for 90 days after notice to the Company by the Trustee or
by holders of 25% in principal amount of the outstanding Debt
Securities of such series in the performance of any covenant in
the Debt Securities of such series or in the Indenture with
respect to Debt Securities of such series;
- certain events of bankruptcy, insolvency and reorganization.
No Event of Default with respect to a single series of indebtedness issued under
the Indenture (and any supplemental indentures) necessarily constitutes an Event
of Default with respect to any other series of indebtedness issued thereunder.
(Section 601)
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The Indenture provides that the trustee will, within 90 days after the
occurrence of a default with respect to the Debt Securities of any series, give
to the holders of the Debt Securities of such series notice of all uncured and
unwaived defaults known to it; provided that, except in the case of default in
the payment of principal of, or premium or interest, if any, on, or a sinking
fund installment, if any, with respect to any of the Debt Securities of such
series, the Trustee will be protected in withholding such notice if it in good
faith determines that the withholding of such notice is in the interest of the
holders of the Debt Securities of such series. The term "default" for the
purpose of this provision only means the happening of any of the Events of
Default specified above, except that any grace period or notice requirement is
eliminated. (Section 702)
The Indenture contains provisions entitling the Trustee, subject to the
duty of the Trustee during an Event of Default to act with the required standard
of care, to be indemnified by the holders of the Debt Securities before
proceeding to exercise any right or power under the Indenture at the request of
holders of the Debt Securities. (Section 703)
The Indenture provides that the holders of a majority in principal amount
of the outstanding Debt Securities of any series may in certain circumstances
direct the time, method and place of conducting proceedings for remedies
available to the Trustee or exercising any trust or power conferred on the
Trustee in respect of such series. (Section 612)
The Indenture includes a covenant that the Company will file annually
with the Trustee an Officers' Certificate stating whether any default exists and
specifying any default that exists. (Section 1106)
In certain cases, the holders of a majority in principal amount of the
outstanding Debt Securities of any series may on behalf of the holders of all
Debt Securities of such series waive any past default or Event of Default with
respect to the Debt Securities of such series or compliance with certain
provisions of the Indenture, except, among other things, a default not
theretofore cured in payment of the principal of, or premium or interest, if
any, on, any of the Debt Securities of such series. (Section 613) The holders of
a majority in principal amount of a series of outstanding Debt Securities also
have certain rights to rescind any declaration of acceleration with respect to
such series after all Events of Default with respect to such series not arising
from such declaration shall have been cured. (Section 602)
MODIFICATION OF THE INDENTURE
The Indenture allows the Company and the Trustee, without the consent of
any holders of Debt Securities, to enter into supplemental indentures for the
purposes, among other things, of:
- adding to the Company's covenants,
- adding additional Events of Default,
- establishing the form or terms of any series of Debt Securities
issued under such supplemental indentures or curing ambiguities or
inconsistencies in the Indenture,
- making other provisions that do not adversely affect the interests
of the holders of any series of Debt Securities in any material
respect. (Section 1001)
The Indenture allows the Company and the Trustee, with the consent of the
holders of not less than a majority in principal amount of the outstanding Debt
Securities of all affected series (acting as one class), to execute supplemental
indentures adding any provisions to or changing or eliminating any of the
provisions of the Indenture or modifying the rights of the holders of the Debt
Securities of such series. But, no supplemental indenture may, without the
consent of the holders of all the outstanding Debt Securities affected thereby,
among other things:
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Debt Security;
(2) reduce the principal amount of, the rate of interest on, or any
premium payable upon the redemption of, any Debt Security;
(3) reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon acceleration of the
Maturity thereof;
(4) change any Place of Payment where, or the currency, currencies or
currency unit or units in which, any Debt Security or any premium
or interest thereon is payable;
(5) impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date);
(6) affect adversely the terms, if any, of conversion of any Debt
Security into stock or other securities of the Company or of any
other corporation;
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(7) reduce the percentage in principal amount of the outstanding Debt
Securities of any series, the consent of whose holders is required
for any such supplemental indenture, or the consent of whose
holders is required for any waiver (of compliance with certain
provisions of the Indenture or certain defaults thereunder and
their consequences) provided for in the Indenture;
(8) change any obligation of the Company, with respect to outstanding
Debt Securities of a series, to maintain an office or agency in
the places and for the purposes specified in the Indenture for
such series;
(9) modify any of the foregoing provisions or the provisions for the
waiver of certain covenants and defaults, except to increase any
applicable percentage of the aggregate principal amount of
outstanding Debt Securities the consent of the holders of which is
required or to provide with respect to any particular series the
right to condition the effectiveness of any supplemental indenture
as to that series on the consent of the holders of a specified
percentage of the aggregate principal amount of outstanding Debt
Securities of such series 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
affected thereby. (Section 1002)
MEETINGS
The Indenture contains provisions for convening meetings of the holders
of Debt Securities of any series. (Section 1401) A meeting may be called at any
time by the Trustee under the Indenture, and also, upon request, by the Company
or the holders of at least 10% in principal amount of the outstanding Debt
Securities of such series, in any such case upon notice given in accordance with
"Notices" below. (Section 1402) Persons entitled to vote a majority in principal
amount of the outstanding Debt Securities of a series will constitute a quorum
at a meeting of holders of Debt Securities of such series, except that in the
absence of a quorum, if the meeting was called by the Company or the Trustee, it
may be adjourned for a period of not less than 10 days, and in the absence of a
quorum at any such adjourned meeting, the meeting may be further adjourned for a
period of not less than 10 days.
Except for any consent which must be given by the holder of each
outstanding Debt Security affected thereby, as described above under
"Modification of the Indenture", and subject to the provisions described in the
last sentence under this subheading, any resolution presented at a meeting or
adjourned meeting duly reconvened at which a quorum is present may be adopted by
the affirmative vote of the holders of a majority in principal amount of the
outstanding Debt Securities of that series. Any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which may be made, given or taken by the holders of a specified
percentage, which is equal to or less than a majority, in principal amount of
outstanding Debt Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal amount
of the outstanding Debt Securities of that series. Any resolution passed or
decision taken at any meeting of holders of Debt Securities of any series duly
held in accordance with the Indenture will be binding on all holders of Debt
Securities of that series and the related coupons. With respect to any consent,
waiver or other action which the Indenture expressly provides may be given by
the holders of a specified percentage of outstanding Debt Securities of all
series affected thereby (acting as one class), only the principal amount of
outstanding Debt Securities of any series represented at a meeting or an
adjourned meeting duly reconvened at which a quorum is present as aforesaid and
voting in favor of such action will be counted for purposes of calculating the
aggregate principal amount of outstanding Debt Securities of all series affected
thereby favoring such action. (Section 1404)
NOTICES
Except as otherwise provided in the Indenture, notices to holders of
Bearer Debt Securities will be given by publication at least once in a daily
newspaper in The City of New York and in London and in such other city or cities
as may be specified in such Bearer Debt Securities. Notices will also be mailed
to such persons whose names and addresses were previously filed with the
Trustee, within the time prescribed for the giving of such notice. Notices to
holders of Registered Debt Securities will be given by mail to the addresses of
such holders as they appear in the Security Register. (Section 106)
TITLE
Title to any Bearer Debt Securities and any coupons appertaining thereto
will pass by delivery. The Company, the Trustee and any agent of the Company or
the Trustee may treat the bearer of any Bearer Debt Security or related coupon
and, prior to due presentment for registration of transfer, the registered owner
of any Registered Debt Security (including Registered Debt Securities in global
registered form), as
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the absolute owner thereof (whether or not such Debt Security or coupon shall be
overdue and notwithstanding any notice to the contrary) for the purpose of
making payment and for all other purposes. (Section 407)
REPLACEMENT OF SECURITIES COUPONS
Any mutilated Debt Security and any Debt Security with a mutilated coupon
appertaining thereto will be replaced by the Company at the expense of the
holder upon surrender of such mutilated Debt Security or Debt Security with a
mutilated coupon to the Security Registrar. Debt Securities or coupons that
become destroyed, stolen or lost will be replaced by the Company at the expense
of the holder upon delivery to the Security Registrar of evidence of the
destruction, loss or theft thereto satisfactory to the Company and the Security
Registrar; in the case of any coupon which becomes destroyed, stolen or lost,
such coupon will be replaced (upon surrender to the Security Registrar of the
Debt Security with all appurtenant coupons not destroyed, stolen or lost) by
issuance of a new Debt Security in exchange for the Debt Security to which such
coupon appertains. In the case of a destroyed, lost or stolen Debt Security or
coupon, an indemnity satisfactory to the Security Registrar and the Company may
be required at the expense of the holder of such Debt Security or coupon before
a replacement Debt Security will be issued. (Section 405)
GOVERNING LAW
The Indenture, the Debt Securities and the coupons will be governed by,
and construed in accordance with, the laws of the State of New York.
CONCERNING THE TRUSTEE
The Company may from time to time maintain lines of credit, and have
other customary banking relationships, with The First National Bank of Chicago,
the Trustee under the Indenture, or with its affiliates. The First Chicago Trust
Company of New York, an affiliate of the Trustee, acts as the stock transfer
agent and registrar with respect to the Company's common stock.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities in any of three ways: (i)
through underwriters, (ii) through agents or (iii) directly to a limited number
of institutional purchasers or to a single purchaser. The Prospectus Supplement
with respect to each series of Debt Securities will set forth the terms of the
offering of the Debt Securities of such series, including the name or names of
any underwriters, the purchase price and the proceeds to the Company from such
sale, any underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchanges on which
the Debt Securities of such series may be listed.
If underwriters are used in the sale, the Debt Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The Debt Securities may be either offered to the public through underwriting
syndicates represented by managing underwriters or by underwriters without a
syndicate. Unless otherwise set forth in the Prospectus Supplement, the
obligations of the underwriters to purchase Debt Securities will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all the Debt Securities of a series if any are purchased. Any initial public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Debt Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in the Prospectus Supplement. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a best efforts basis for
the period of its appointment.
The Company may authorize agents or underwriters to solicit offers by
certain types of institutions to purchase Debt Securities from the Company at
the public offering price set forth in the Prospectus Supplement pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. Such contracts will be subject only to those conditions set
forth in the Prospectus Supplement, and the Prospectus Supplement will set forth
the commissions payable for solicitation of such contracts.
Agents and underwriters may be entitled under agreements entered into
with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act of 1933, or to
contribution with respect to payments which the agents or underwriters may be
required to make in respect thereof. Agents and underwriters may be customers
of, engage in transactions with, or perform services for, the Company in the
ordinary course of business.
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Each series of Debt Securities will be a new issue of securities with no
established trading market. Any underwriters to whom Debt Securities are sold by
the Company for public offering and sale may make a market in such Debt
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Debt Securities.
EXPERTS
The consolidated financial statements of the Company incorporated in this
Prospectus by reference to the Company's Annual Report on Form 10-K for the year
ended December 28, 1997 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Sections 27A of the Securities Act and 21E of the Exchange Act provide a
"safe harbor" for forward-looking statements to encourage companies to provide
prospective information about their businesses and other matters as long as
those statements are identified as forward-looking and are accompanied by
meaningful cautionary statements identifying important factors that could cause
actual results to differ materially from those discussed in the statements. All
statements contained in this Prospectus, in each Prospectus Supplement and in
any document incorporated by reference herein that the Company expects or
anticipates something will or may occur in the future, including statements
about the Company's business strategies, competitive strengths and the
expansion and growth of the Company's business and operations, are
forward-looking statements and the Company wishes to take advantage of the
"safe-harbor" provisions referred to above in connection with such statements.
These forward-looking statements are and will be based on certain assumptions
and analyses made by the Company in light of its experience and its perception
of historical trends, current conditions and expected future developments, as
well as other factors the Company believes are appropriate under the
circumstances. However forward-looking statements are subject to various risks
and uncertainties that could cause actual results or events to differ
materially from those anticipated in such statements. Specific factors
identified by the Company that might cause such a difference include, among
other things, the factors noted in "Item 1. Business" in the Company's Annual
Report on Form 10-K for the fiscal year ended December 28, 1997 ("Annual
Report"), and "Management's Discussion and Analysis of Financial Condition and
Results of Operation" in the Annual Report and in the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended September 27, 1998. Other risk
factors include the following: changes in prevailing economic conditions,
particularly in the specific geographic and other markets served by the
Company; actions of competitors, including competitive pricing and competitive
service offerings; changes in the preferences of readers, viewers and
advertisers; changes in communication and broadcast technologies and markets;
changes in laws and regulations, including changes in television broadcast and
cable television laws and regulations and changes in taxation and accounting
standards; the effects of changing cost or availability of raw materials,
including changes in the cost or availability of newsprint and magazine body
paper; changes in postal rates; changes in the extent to which standardized
tests are used in the admissions process by colleges and graduate schools; the
inability of computer systems or equipment to process transactions for the year
2000 or beyond, including non-compliance of the Company's critical internal
systems and equipment due to failure to identify non-compliance or incomplete
or inadequate remediation efforts by vendors, suppliers, service providers,
customers or governmental entities that are critical to the Company's business
operations; and the effectiveness of the Company's marketing and sales
programs.
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following statement sets forth the estimated amounts of expenses
(subject to future contingencies), other than underwriting discounts, to be
borne by the Company in connection with the offering described in this
Registration Statement:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission Registration Fee.... $111,200
Trustee's Fees......................................... 6,000
Printing and Engraving Expenses........................ 25,000
Rating Agency Fees..................................... 235,000
Accounting Fees and Expenses........................... 55,000
Miscellaneous Expenses................................. 10,000
--------
Total Expenses......................................... $442,200
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL") permits the
Company to indemnify any director or officer of the Company against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement,
incurred in defense of any action (other than an action by or in the right of
the Company) arising by reason of the fact that he is or was an officer or
director of the Company 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 Company and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. Section 145 also permits the Company to indemnify any
such officer or director against expenses incurred in an action by or in the
right of the Company 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 Company, except in
respect of any matter as to which such person is adjudged to be liable to the
Company, in which case court approval must be sought for indemnification. This
statute requires indemnification of such officers and directors against expenses
to the extent they may be successful in defending any such action. This statute
provides that it is not exclusive of other indemnification that may be granted
by the Company's by-laws, a vote of stockholders or disinterested directors,
agreement or otherwise. The statute permits purchase of liability insurance by
the Company on behalf of officers and directors, and the Company has purchased
such insurance.
Paragraph B of Article Nine of the Registrant's Certificate of
Incorporation requires indemnification to the fullest extent permitted under
Delaware law of any person who is or was a director or officer of the Registrant
who is or was involved or threatened to be made so involved in any action, suit
or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that such person is or was serving as a director, officer or
employee of the Registrant or any predecessor of the Registrant or was serving
at the request of the Registrant as a director, officer of employee of any other
enterprise.
Section 102(b)(7) of the DGCL permits a provision in the certificate of
incorporation of each corporation organized thereunder, such as the Registrant,
eliminating or limiting, with certain exceptions, the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director. Paragraph A of Article Nine of the Registrant's
Certificate of Incorporation eliminates the liability of directors to the extent
permitted by Section 102(b)(7) of the DGCL.
The foregoing statements are subject to the detailed provisions of
Section 145 and 102(b)(7) of the DGCL and Article Nine of such Certificate of
Incorporation, as applicable.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
(1) Proposed Form of Underwriting Agreement.*
(4)(a) Form of Indenture between the Company and
The First National Bank of Chicago as Trustee.*
(4)(b) Form of Fixed Rate Security with and
without Redemption Provision (included in Exhibit 4(a)).
(5) Opinion of Diana M. Daniels, Esq.*
(12) Computation of Ratios of Earnings to Fixed Charges.*
(23)(a) Consent of Independent Accountants.*
</TABLE>
II-1
<PAGE> 18
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
(23)(b) Consent of Counsel (included in Exhibit 5).*
(24) Powers of Attorney.*
(25) Statement of Eligibility and Qualification on Form T-1
of The First National Bank of Chicago to act as Trustee
under the Indenture.*
</TABLE>
----------
* Filed electronically herewith.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) 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;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended, that are
incorporated by reference in the Registration Statements.
(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 Section 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in Item 15 above
(other than through the liability insurance referred to therein), 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 in the successful defense of any action, suit or proceeding and other
than through such liability insurance) is asserted by such officer, director 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 of whether or not such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-2
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant 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, on December 23, 1998.
THE WASHINGTON POST COMPANY,
by
/s/ John B. Morse, Jr.
-------------------------------------
Name: John B. Morse, Jr.
Title: Vice President - Finance
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated:
<TABLE>
<S> <C>
* Chairman of the Board and Chief Executive
------------------------------------------------------------ Officer (Principal Executive Officer) and Director
Donald E. Graham
* President, Chief Operating Officer and Director
------------------------------------------------------------
Alan G. Spoon
* Chairman of the Executive Committee
------------------------------------------------------------ of the Board and Director
Katharine Graham
/s/ John B. Morse, Jr. Vice President-Finance (Principal
------------------------------------------------------------ Financial and Accounting Officer)
John B. Morse, Jr.
* Director
------------------------------------------------------------
Warren E. Buffett
* Director
------------------------------------------------------------
Daniel B. Burke
* Director
------------------------------------------------------------
James E. Burke
* Vice President and Director
------------------------------------------------------------
Martin Cohen
* Director
------------------------------------------------------------
George J. Gillespie, III
* Director
------------------------------------------------------------
Ralph E. Gomory
</TABLE>
II-3
<PAGE> 20
<TABLE>
<S> <C>
* Director
------------------------------------------------------------
Donald R. Keough
* Director
------------------------------------------------------------
Barbara Scott Preiskel
* Director
------------------------------------------------------------
William J. Ruane
* Director
------------------------------------------------------------
Richard D. Simmons
* Director
------------------------------------------------------------
George W. Wilson
*By /s/ John B. Morse, Jr.
-----------------------------------------------------------
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 1
Exhibit (1)
THE WASHINGTON POST COMPANY
DEBT SECURITIES
----------
UNDERWRITING AGREEMENT
................, 19....
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time The Washington Post Company, a Delaware corporation
(the "Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
<PAGE> 2
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-....) (the
"Initial Registration Statement") in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to the Initial Registration
Statement, but including all documents incorporated by reference in the
prospectus contained therein, to the Representatives for each of the
other Underwriters, have been declared effective by the Commission in
such form; other than a registration statement, if any, increasing the
size of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the
"Act"), which became effective upon filing, no other document with
respect to the Initial Registration Statement or document incorporated by
reference therein has heretofore been filed or transmitted for filing
with the Commission (other than prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act, each
in the form heretofore delivered to the Representatives); and no stop
order suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with
the Commission pursuant to Rule 424(a) under the Act, is hereinafter
called a "Preliminary Prospectus"; the various parts of the Initial
Registration Statement, any post-effective amendment thereto and the Rule
462(b) Registration Statement, if any, including all exhibits thereto and
the documents incorporated by reference in the prospectus contained in
the Initial Registration Statement at the time such part of the Initial
Registration Statement became effective, but excluding Form T-1, each as
amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration Statement,
if any, became or hereafter becomes effective, are hereinafter
collectively called the "Registration Statement"; the prospectus relating
to the Securities, in the form in which it has most recently been filed,
or transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Initial Registration Statement shall be deemed to refer
to and include any annual report of the Company filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act after the effective date of
the Initial Registration Statement that is incorporated by reference in
the Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the applicable Designated
Securities in the form in which it is filed with the Commission pursuant
to Rule 424(b) under the Act in accordance with Section 5(a) hereof,
including any documents incorporated by reference therein as of the date
of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with
2
<PAGE> 3
the Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Indenture, including any amendments or supplements
thereto pursuant to which Designated Securities will be issued, as of the
effective date of the Registration Statement and as of the applicable
filing date of the Prospectus, complies with the requirements of the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the rules and regulations of the Commission thereunder and the
Registration Statement and the Prospectus do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities or as to any statements in or omissions from the
Statement of Eligibility of the Trustee under the Indenture;
(d) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and
(e) The Securities have been duly authorized, and, when Designated
Securities are issued, authenticated and delivered pursuant to the
Indenture to, and paid for by, the Underwriters of such Designated
Securities pursuant to this Agreement and the Pricing Agreement with
respect to such Designated Securities, such Designated Securities will
have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture, which will be substantially in
the form filed as an exhibit to the Registration Statement; the Indenture
has been duly authorized and duly qualified under the Trust Indenture Act
and, at the Time of Delivery for such Designated Securities (as defined
in Section 4 hereof), the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general equity principles; and the Indenture conforms, and the
Designated Securities will conform, to the descriptions thereof contained
in the Prospectus as amended or supplemented with respect to such
Designated Securities.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented and this Agreement and the applicable
Pricing Agreement, and, in connection with such offer or the sale of such
Designated Securities, will use the Prospectus as amended or supplemented,
together with any amendment or supplement thereto, that specifically describes
such Designated Securities, in the form which has been most recently
3
<PAGE> 4
distributed to them by the Company, only as permitted or contemplated thereby,
and will offer and sell such Designated Securities only as permitted by the Act
and the applicable securities laws or regulations of any jurisdiction.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified by the Company to
the Representatives at least forty-eight hours in advance or at such other place
and time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives (which approval will not be unreasonably withheld)
and to file such Prospectus pursuant to Rule 424(b) under the Act in
accordance with the applicable provisions thereof; to make no further
amendment or any supplement to the Registration Statement or Prospectus
as amended or supplemented after the date of the Pricing Agreement
relating to such Securities and prior to the Time of Delivery for such
Securities unless such amendment or supplement shall have been approved
by the Representatives (which approval will not be unreasonably
withheld); to advise the Representatives promptly of any such amendment
or supplement after such Time of Delivery and furnish the Representatives
with copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission,
of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of such Securities for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or
suspending any such qualification, to promptly use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the state securities or blue sky laws of such
domestic jurisdictions as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of such Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 12:00 noon, New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to
time as the Representatives may reasonably request, to furnish the
Underwriters with copies of the Prospectus in New York City as amended or
supplemented in such quantities as the Representatives may reasonably
request, and, if the delivery of a prospectus is required at any time,
but for no longer than six months from and after the date of the
applicable Pricing Agreement, in connection with the offering or sale of
the Securities and if at such time any event shall have occurred as a
result
4
<PAGE> 5
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify the Representatives and upon their
request to file such document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities designated by the
Representatives as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment Surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; no stop order suspending the effectiveness of the Registration
Statement
5
<PAGE> 6
or any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions (a draft of each such opinion
is attached as Annex II(a) hereto), dated the Time of Delivery for such
Designated Securities, with respect to such matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Counsel for the Company satisfactory to the Representatives,
which may be the General Counsel of the Company, shall have furnished to the
Representatives their written opinion (a draft of such opinion is attached as
Annex II(b) hereto), dated the Time of Delivery for such Designated Securities,
in form and substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus as
amended or supplemented;
(ii) To such counsel's knowledge and other than as set forth in
the Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject which,
if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect"); and, to such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(iii) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered
by the Company;
(iv) The Designated Securities have been duly authorized and, when
duly executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of the Agreement, will constitute legal, valid and binding
obligations of the Company enforceable against the Company in accordance
with their respective terms, except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors' rights generally and (ii) rights
of acceleration and the availability of other remedies may be limited by
equitable principles of general applicability.
(v) The Indenture has been duly authorized, executed and delivered
by the Company, qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and constitutes the legal, valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms, except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors' rights generally and (ii) rights
of acceleration and the availability of other remedies may be limited by
equitable principles of general applicability.
(vi) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing Agreement with
respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of the provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which the Company
is a party or by which the Company is bound or to
6
<PAGE> 7
which any of the property or assets of the Company is subject, except for
such conflicts, breaches, violations or defaults that would not
individually or in the aggregate have a Material Adverse Effect, nor will
such actions result in any violation (i) of the provisions of the
Certificate of Incorporation or By-Laws of the Company or (ii) of any
statute or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the Company
or any of its properties, except for such violations that would not
individually or in the aggregate have a Material Adverse Effect.
(vii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture, except such as have
been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(viii) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and other
information of an accounting or financial nature, as to which such
counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder;
(ix) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the Designated Securities
(other than the financial statements and other information of an
accounting or financial nature, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements
of the Act and the Trust Indenture Act and the rules and regulations
thereunder; although such counsel does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, such counsel has no reason to
believe that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and other information of an
accounting or financial nature, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or that, as of its date, the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery
(other than the financial statements and other information of an
accounting or financial nature, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading or
that, as of the Time of Delivery, either the Registration Statement or
the Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery
(other than the financial statements and other information of an
accounting or financial nature, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and such counsel does not know of any amendment to the Registration
Statement required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the Prospectus
as amended or supplemented or required to be described in the
Registration Statement or the Prospectus as amended or supplemented which
are not filed or incorporated by reference or described as required;
7
<PAGE> 8
(d) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at the Time of Delivery for such
Designated Securities, the independent accountants of the Company who have
certified the financial statements of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement shall have furnished
to the Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such effective
date, and a letter dated such Time of Delivery, respectively, to the effect set
forth in Annex III hereto, and with respect to such letter dated such Time of
Delivery, as to such other matters as the Representatives may reasonably request
and in form and substance reasonably satisfactory to the Representatives (the
executed copy of the letter delivered prior to the execution of this Agreement
is attached as Annex III(a) hereto and a draft of the form of letter to be
delivered on the effective date of any post-effective amendment to the
Registration Statement and as of each Time of Delivery is attached as Annex
III(b) hereto);
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior to the
date of the Pricing Agreement relating to the Designated Securities any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities, and (ii) since the respective
dates as of which information is given in the Prospectus as amended prior to the
date of the Pricing Agreement relating to the Designated Securities there shall
not have been any change, or any development involving a prospective change, in
or affecting the properties, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus as amended prior to the date
of the Pricing Agreement relating to the Designated Securities, the effect of
which, in any such case described in Clause (i) or (ii), is in the reasonable
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented relating to the Designated Securities;
(f) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally on
the New York Stock Exchange; (ii) a suspension or material limitation in trading
in the Company's securities on the New York Stock Exchange; (iii) a general
moratorium on commercial banking activities declared by either Federal or New
York State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
Clause (iv) in the reasonable judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented relating to the Designated Securities;
(g) The Company shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company reasonably satisfactory
to the Representatives as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the performance
by the Company of all of its obligations hereunder to be performed at or prior
to such Time of Delivery, as to the matters set forth in subsections (a) and (e)
of this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement,
8
<PAGE> 9
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred, with reasonable promptness following the receipt of
appropriate documentation which confirms the nature and amount of the expenses
to be reimbursed; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities and provided, further, that the Company
shall not be liable to such Underwriter under the indemnity agreement in this
subsection (a) with respect to any Preliminary Prospectus or preliminary
prospectus supplement or the Prospectus or any amendment or supplement to the
extent that any such loss, claim, damage or liability results from the fact that
such Underwriter sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus or of the Prospectus as then amended or supplemented if the Company
has previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein, and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred, with reasonable promptness following the receipt of appropriate
documentation which confirms the nature and amount of the expenses to be
reimbursed.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the
9
<PAGE> 10
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission including, with respect to any such Underwriter, the extent to which
such losses, claims, damages or liabilities (or actions in respect thereof)
result from the fact that such Underwriter sold such Designated Securities to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus or of the Prospectus as then
amended or supplemented (excluding documents incorporated by reference),
whichever is most recent, if the Company has previously furnished copies thereof
to such Underwriter. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations
10
<PAGE> 11
of the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any
11
<PAGE> 12
officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
12
<PAGE> 13
IF THE FOREGOING IS IN ACCORDANCE WITH YOUR UNDERSTANDING, PLEASE SIGN AND
RETURN TO US [ONE FOR THE COMPANY AND FOR EACH OF THE REPRESENTATIVES PLUS ONE
FOR EACH COUNSEL] COUNTERPARTS HEREOF.
Very truly yours,
The Washington Post Company
By:........................
Name:
Title:
Accepted as of the date hereof:
[the Representative]
[Name(s) of Co-Representative(s)]
By:...................................
[[NAME(s) OF CO-REPRESENTATIVE CORPORATION(s)]
BY:...................................
NAME:
TITLE:
...................................
[(NAME(s) OF CO-REPRESENTATIVE
PARTNERSHIP(s))]
13
<PAGE> 14
ANNEX I
PRICING AGREEMENT
[the Representative]
[NAMES OF CO-REPRESENTATIVE(s),]
As Representatives of the several
Underwriters named in Schedule I hereto,
[ADDRESS]
............., 19..
Ladies and Gentlemen:
The Washington Post Company, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated . . . . . . . . . . . ., 19 . . (the "Underwriting
Agreement"), between the Company on the one hand and [the Representative] [and
(names of Co-Representatives named therein)] on the other hand], to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"). Each
of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement to
the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us [ONE FOR THE COMPANY AND EACH OF THE REPRESENTATIVES PLUS ONE FOR
EACH COUNSEL] counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form
<PAGE> 15
of which shall be submitted to the Company for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
The Washington Post Company
By:.........................
Name:
Title:
Accepted as of the date hereof:
[the Representative]
[NAME(s) OF CO-REPRESENTATIVE(s)]
BY:..................................
[[NAME(s) OF CO-REPRESENTATIVE CORPORATION(s)]
BY:..........................................
NAME:
TITLE:
..........................................
[(NAME(s) OF CO-REPRESENTATIVE
PARTNERSHIP(s))]]
On behalf of each of the Underwriters
2
<PAGE> 16
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
<S> <C>
[the Representative]....................................... $
[NAME(s) OF CO-REPRESENTATIVE(s)]..........................
[NAMES OF OTHER UNDERWRITERS]..............................
Total.......................................... $-----
=====
</TABLE>
3
<PAGE> 17
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to [and accrued amortization[, if any,]
from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization[, if any,] from
to ]
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TIME OF DELIVERY:
a.m. (New York City time), , 19
INDENTURE:
Indenture dated , 19 , between the Company and
The First National Bank of Chicago, as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ....................., 19..]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
4
<PAGE> 18
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %,
and if] redeemed during the 12-month period beginning ,
REDEMPTION
YEAR PRICE
---- -----
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at the
election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire [$ ] principal amount of Designated Securities on
in each of the years through at 100% of their principal
amount plus accrued interest[, together with [cumulative] [noncumulative]
redemptions at the option of the Company to retire an additional [$ ]
principal amount of Designated Securities in the years through at
100% of their principal amount plus accrued interest.]
[If Designated Securities are extendable debt securities, insert--
EXTENDABLE PROVISIONS:
Designated Securities are repayable on , [insert date and years],
at the option of the holder, at their principal amount with accrued
interest. The initial annual interest rate will be %, and thereafter
the annual interest rate will be adjusted on , and to a rate
not less than % of the effective annual interest rate on U.S. Treasury
obligations with -year maturities as of the [insert date 15 days prior
to maturity date] prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities, insert--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , , and
] [to an annual rate of % above the average rate for
-year [month][securities][certificates of deposit] issued by and
[insert names of banks].] [and the annual interest rate [thereafter]
[from through ] will be the interest yield equivalent of the
weekly average per annum market discount rate for -month Treasury bills
plus % of Interest Differential (the excess, if any, of (i) the then
current weekly average per annum secondary market yield for -month
certificates of deposit over (ii) the then current interest yield
equivalent of the weekly average per annum market discount rate for
-month Treasury bills); [from and
5
<PAGE> 19
thereafter the rate will be the then current interest yield equivalent
plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
CLOSING LOCATION AND TIME FOR DELIVERY OF DESIGNATED SECURITIES:
ADDITIONAL CLOSING CONDITIONS:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
6
<PAGE> 20
ANNEX III
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited, examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus; and on the basis of
specified procedures including inquiries of officials of the Company who
have responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302, 402 and
503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's
<PAGE> 21
Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or included in
the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) were not determined on
a basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published
rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated
net current assets or shareholders' equity or other items specified
by the Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in
the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in Clause (E) there were any
decreases in consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
2
<PAGE> 22
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Company and
its subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
3
<PAGE> 1
EXHIBIT (4)(a)
================================================================================
THE WASHINGTON POST COMPANY
and
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
--------------
Indenture
Dated as of [ ], 1998
--------------
Providing for the Issuance of
Debt Securities in Series
================================================================================
<PAGE> 2
THE WASHINGTON POST COMPANY
Reconciliation and Tie Between Trust Indenture Act of 1939 and Indenture
Provisions(*)
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
----------- -----------------
<S> <C>
Section 310(a)(1) ..................................... 709
(a)(2) ..................................... 709
(a)(3) ..................................... Not Applicable
(a)(4) ..................................... Not Applicable
(b) ..................................... 708
..................................... 710
Section 311(a) ..................................... 713(a)
713(c)
(b) ..................................... 713(b)
(b)(2) ..................................... 803(a)(2)
..................................... 803(b)
Section 312(a) ..................................... 801
802(a)
(b) ..................................... 802(b)
(c) ..................................... 802(c)
Section 313(a) ..................................... 803(a)
(b) ..................................... 803(b)
(c) ..................................... 803(d)
(d) ..................................... 803(c)
Section 314(a) ..................................... 804
(b) ..................................... Not Applicable
(c)(1) ..................................... 102
(c)(2) ..................................... 102
(c)(3) ..................................... Not Applicable
(d) ..................................... Not Applicable
(e) ..................................... 102
</TABLE>
- ------------------------
(*) This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
3
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
----------- -----------------
<S> <C>
Section 315(a) ..................................... 701(a)
(b) ..................................... 702
..................................... 803(a)(6)
(c) ..................................... 701(b)
(d) ..................................... 701(c)
(d)(1) ..................................... 701(a)
(d)(2) ..................................... 701(c)(2)
(d)(3) ..................................... 701(c)(3)
(e) ..................................... 614
Section 316(a) ..................................... 101
(a)(1)(A) ..................................... 602
..................................... 612
(a)(1)(B) ..................................... 613
(a)(2) ..................................... Not Applicable
(b) ..................................... 608
Section 317(a)(1) ..................................... 603
(a)(2) ..................................... 604
(b) ..................................... 1103
Section 318(a) ..................................... 107
</TABLE>
<PAGE> 4
Contents, P. 1
TABLE OF CONTENTS(1)
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions........................................................................... 1
SECTION 102. Compliance Certificates and Opinions.................................................. 11
SECTION 103. Form of Documents Delivered to Trustee................................................ 11
SECTION 104. Acts of Holders....................................................................... 12
SECTION 105. Notices, etc., to Trustee and Company................................................. 14
SECTION 106. Notice to Holders; Waiver............................................................. 14
SECTION 107. Conflict with Trust Indenture Act..................................................... 15
SECTION 108. Effect of Headings and Table of Contents.............................................. 15
SECTION 109. Successors and Assigns................................................................ 15
SECTION 110. Separability Clause................................................................... 15
SECTION 111. Benefits of Indenture................................................................. 15
SECTION 112. Governing Law......................................................................... 15
SECTION 113. Legal Holidays........................................................................ 15
SECTION 114. Moneys of Different Currencies To Be Segregated....................................... 15
SECTION 115. Payment To Be in Property Currency.................................................... 16
SECTION 116. Language of Notices, etc.............................................................. 16
SECTION 117. Changes in Exhibits................................................................... 16
ARTICLE TWO
Issuance of Securities
SECTION 201. Creation of Securities in Amount Unlimited............................................ 16
SECTION 202. Documents Required for Issuance of Each Series of Securities Other than Medium-Term
Debt Securities................................................................. 16
ARTICLE THREE
Issuance of Medium-Term Debt Securities
SECTION 301. Documents Required for Issuance of Each Series of Medium-Term Debt Securities......... 20
SECTION 302. Form of Medium-Term Debt Securities................................................... 24
</TABLE>
- ---------------------
(1) This table of contents shall not, for any purpose, be deemed to be part of
the Indenture.
<PAGE> 5
Contents, P. 2
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE FOUR
The Securities
SECTION 401. Form and Denomination................................................................. 24
SECTION 402. Execution, Delivery, Dating and Authentication........................................ 24
SECTION 403. Temporary Securities.................................................................. 26
SECTION 404. Registration, Registration of Transfer and Exchange................................... 28
SECTION 405. Mutilated, Destroyed, Lost and Stolen Securities...................................... 30
SECTION 406. Payment of Interest; Interest Rights Preserved........................................ 31
SECTION 407. Persons Deemed Owners................................................................. 32
SECTION 408. Cancelation........................................................................... 32
SECTION 409. Computation of Interest............................................................... 32
SECTION 410. Currency and Manner of Payment in Respect of Securities............................... 33
SECTION 411. Securities in Global Form............................................................. 37
ARTICLE FIVE
Satisfaction and Discharge
SECTION 501. Satisfaction and Discharge of Indenture in Respect of Any Series of Securities........ 38
SECTION 502. Application of Trust Money............................................................ 39
SECTION 503. Satisfaction, Discharge and Defeasance of Securities of Any Series.................... 39
SECTION 504. Reinstatement......................................................................... 40
SECTION 505. Definitions........................................................................... 41
ARTICLE SIX
Remedies
SECTION 601. Events of Default..................................................................... 42
SECTION 602. Acceleration of Maturity; Rescission and Annulment.................................... 43
SECTION 603. Collection of Indebtedness and Suits for Enforcement by Trustee....................... 43
SECTION 604. Trustee May File Proofs of Claim...................................................... 44
SECTION 605. Trustee May Enforce Claims Without Possession of Securities........................... 45
SECTION 606. Application of Money Collected........................................................ 45
SECTION 607. Limitation on Suits................................................................... 45
</TABLE>
<PAGE> 6
Contents, P. 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 608. Unconditional Right of Holders To Receive Principal, Premium and Interest............. 46
SECTION 609. Restoration of Rights and Remedies.................................................... 46
SECTION 610. Rights and Remedies Cumulative........................................................ 46
SECTION 611. Delay or Omission Not Waiver.......................................................... 46
SECTION 612. Control by Holders.................................................................... 46
SECTION 613. Waiver of Past Defaults............................................................... 47
SECTION 614. Undertaking for Costs................................................................. 47
SECTION 615. Waiver of Stay or Extension Laws...................................................... 47
ARTICLE SEVEN
The Trustee
SECTION 701. Certain Duties and Responsibilities................................................... 48
SECTION 702. Notice of Defaults.................................................................... 48
SECTION 703. Certain Rights of Trustee............................................................. 49
SECTION 704. Not Responsible for Recitals or Issuance of Securities................................ 50
SECTION 705. May Hold Securities................................................................... 50
SECTION 706. Money Held in Trust................................................................... 50
SECTION 707. Compensation and Reimbursement........................................................ 50
SECTION 708. Disqualification; Conflicting Interests............................................... 51
SECTION 709. Corporate Trustee Required; Eligibility............................................... 51
SECTION 710. Resignation and Removal; Appointment of Successor..................................... 51
SECTION 711. Acceptance of Appointment by Successor................................................ 53
SECTION 712. Merger, Conversion, Consolidation or Succession to Business........................... 53
SECTION 713. Preferential Collection of Claims Against Company..................................... 54
SECTION 714. Judgment Currency..................................................................... 57
SECTION 715. Appointment of Authenticating Agent................................................... 57
ARTICLE EIGHT
Holders' Lists and Reports by Trustee and Company
SECTION 801. Company To Furnish Trustee Names and Addresses of Holders............................. 59
SECTION 802. Preservation of Information; Communications to Holders................................ 60
SECTION 803. Reports by Trustee.................................................................... 60
SECTION 804. Reports by Company.................................................................... 62
</TABLE>
<PAGE> 7
Contents, P. 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE NINE
Consolidation, Merger, Conveyance or Transfer
SECTION 901. Company May Consolidate, etc., Only on Certain Terms.................................. 62
SECTION 902. Successor Corporation Substituted..................................................... 63
ARTICLE TEN
Supplemental Indentures
SECTION 1001. Supplemental Indentures Without Consent of Holders.................................... 63
SECTION 1002. Supplemental Indentures with Consent of Holders....................................... 64
SECTION 1003. Execution of Supplemental Indentures.................................................. 65
SECTION 1004. Effect of Supplemental Indentures..................................................... 65
SECTION 1005. Conformity with Trust Indenture Act................................................... 65
SECTION 1006. Reference in Securities to Supplemental Indentures.................................... 65
ARTICLE ELEVEN
Covenants
SECTION 1101. Payment of Principal, Premium and Interest............................................ 66
SECTION 1102. Maintenance of Office or Agency....................................................... 66
SECTION 1103. Money for Securities Payments To Be Held in Trust..................................... 67
SECTION 1104. Limitation on Secured Indebtedness.................................................... 68
SECTION 1105. Limitation on Sale and Leaseback Transactions......................................... 68
SECTION 1106. Statement by Officers as to Default................................................... 69
SECTION 1107. Waiver of Certain Covenants........................................................... 69
SECTION 1108. Additional Amounts.................................................................... 69
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Applicability of Article.............................................................. 70
SECTION 1202. Election To Redeem; Notice to Trustee................................................. 70
SECTION 1203. Selection by Trustee of Securities To Be Redeemed..................................... 70
SECTION 1204. Notice of Redemption.................................................................. 71
SECTION 1205. Deposit of Redemption Price........................................................... 71
SECTION 1206. Securities Payable on Redemption Date................................................. 71
SECTION 1207. Securities Redeemed in Part........................................................... 72
</TABLE>
<PAGE> 8
Contents, P. 5
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE THIRTEEN
Sinking Funds
SECTION 1301. Applicability of Article.............................................................. 72
SECTION 1302. Satisfaction of Sinking Fund Payments with Securities................................. 73
SECTION 1303. Redemption of Securities for Sinking Fund............................................. 73
ARTICLE FOURTEEN
Meetings of Holders of Securities
SECTION 1401. Purposes for Which Meetings May Be Called............................................. 73
SECTION 1402. Call, Notice and Place of Meetings.................................................... 73
SECTION 1403. Persons Entitled To Vote at Meetings.................................................. 74
SECTION 1404. Quorum; Action........................................................................ 74
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings................... 74
SECTION 1406. Counting Votes and Recording Action of Meetings....................................... 75
EXHIBIT A Form of Debt Securities
EXHIBIT B.1 Form of Certificate to be given by Person entitled to receive Bearer Security
EXHIBIT B.2 Form of Certificate to be given by Euro-clear and CEDEL S.A. in connection with the
Exchange of a portion of Temporary Global Security
EXHIBIT B.3 Form of Certificate to be given by Euro-clear and CEDEL S.A. to obtain Interest prior
to an Exchange Date
EXHIBIT B.4 Form of Certificate to be given by Beneficial Owners to obtain Interest prior to an
Exchange Date
EXHIBIT B.5 Form of Confirmation to be sent to Purchasers of Bearer Securities
</TABLE>
<PAGE> 9
INDENTURE dated as of [ ], 1998, between THE WASHINGTON POST
COMPANY, a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its
principal office at 1150 15th Street, N.W., Washington, D.C. 20071,
and THE FIRST NATIONAL BANK OF CHICAGO, as Trustee (herein called
the "Trustee"), the office of the Trustee at which at the date
hereof this Indenture is principally administered being 153 W. 51st
Street, New York, NY 10019.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at the date of such
computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally within an Article of this Indenture, may
be defined in that Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to
<PAGE> 10
2
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Attributable Debt" means, as of the date of its determination, the
present value (discounted semiannually at the Attributable Interest Rate) of the
obligation of a lessee for rental payments pursuant to any Sale and Leaseback
Transaction (reduced by the amount of the rental obligations of any sublessee of
all or part of the same property) during the remaining term of such Sale and
Leaseback Transaction (including any period for which the lease relating thereto
has been extended), such rental payments not to include amounts payable by the
lessee for maintenance and repairs, insurance, taxes, assessments and similar
charges and for contingent rents (such as those based on sales). In the case of
any Sale and Leaseback Transaction in which the lease is terminable by the
lessee upon the payment of a penalty, such rental payments shall be considered
for purposes of this definition to be the lesser of (a) the rental payments to
be paid under such Sale and Leaseback Transaction until the first date (after
the date of such determination) upon which it may be so terminated plus the then
applicable penalty upon such termination and (b) the rental payments required to
be paid during the remaining term of such Sale and Leaseback Transaction
(assuming such termination provision is not exercised).
"Attributable Interest Rate" means, as of the date of its determination,
the weighted average of the interest rates (or the effective rate in the case of
Original Issue Discount Securities or discount securities) of all Outstanding
Securities and all securities issued and outstanding (as defined in the 1985
Indenture) under the 1985 Indenture to which Sections 6.05 and 6.06 of the 1985
Indenture apply (and whose application has not been waived).
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 715 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
place of publication, printed in the official language of the country of
publication and customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays. Whenever successive weekly
publications in an Authorized Newspaper are authorized or required hereunder,
they may be made (unless otherwise expressly provided herein) on the same or
different days of the week and in the same or different Authorized Newspapers.
"Bearer Security" means any Security which is not registered in the
Security Register as to both principal and interest (including without
limitation any Security in temporary or definitive global bearer form).
"Board of Directors" means either the board of directors of the Company,
any executive officer of the Company duly authorized to act in the name of or on
behalf of that board or any committee consisting of two or more persons who need
not be directors duly authorized to act in the name of or on behalf of that
board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification.
"Business Day", when used with respect to any Place of Payment or place of
publication, means each day on which commercial banks and foreign exchange
markets settle payments in the Place of Payment or place of publication, or as
specified for a series of Securities pursuant to Section 202 or Section 301, as
the case may be. Unless otherwise specified pursuant to Section 202 or Section
301, as the case may be, when used with
<PAGE> 11
3
respect to Securities bearing interest at a rate or rates determined by
reference to London interbank offered rates for deposits in U.S. Dollars,
"Business Day" shall exclude any day on which commercial banks and foreign
exchange markets do not settle payments in London.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 403.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor corporation.
"Company Request", "Request of the Company", "Company Order" or "Order of
the Company" means a written request or order signed in the name of the Company
by its Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Controller, an Assistant Controller, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 410(i).
"Consolidated Net Worth" means, at the date of any determination, the
consolidated stockholders' or owners' equity of the Company and its
subsidiaries, determined on a consolidated basis in accordance with GAAP
consistently applied.
"Conversion Date" has the meaning specified in Section 410(e).
"Conversion Rate" has the meaning specified in Section 714.
"Corporate Trust Office" means the office of the Trustee in New York, New
York, at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is 153 W. 51st Street, New York,
NY 10019, except that with respect to the presentation of Securities (or
Coupons, if any, representing an installment of interest) for payment or for
registration of transfer and exchange, such term shall mean the office or the
agency of the Trustee in said city at which at any particular time its corporate
agency business shall be conducted.
"corporation" includes corporations, associations, companies and business
trusts.
"Coupon" or "coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 406.
"Discharged" has the meaning specified in Section 505.
"Dollar" means the 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.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 410(h).
<PAGE> 12
4
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 410(g).
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euro-clear" means the operator of the Euro-clear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 601.
"Exchange Rate Agent" means the entity appointed by the Company pursuant
to Section 104(g). Unless otherwise specified as contemplated by Section 202 or
Section 301, as the case may be, the Luxembourg Stock Exchange shall act as
Exchange Rate Agent for purposes of Section 410 in the case of each series of
Securities listed on the Luxembourg Stock Exchange.
"Exchange Rate Officers' Certificate" means a telecopy or tested telex or
a certificate setting forth (i) the applicable Official Currency Unit Exchange
Rate and (ii) the Dollar or Foreign Currency or currency unit amounts of
principal, premium, if any, and interest, if any, respectively (on an aggregate
basis and on the basis of a Security having a principal amount of 1,000 units in
the relevant currency or currency unit), payable on the basis of such Official
Currency Unit Exchange Rate, sent (in the case of a telecopy or telex) or
executed (in the case of a certificate) by the Controller or any Assistant
Controller or by the Treasurer or any Assistant Treasurer of the Company and
delivered to the Trustee; such telecopy, tested telex or certificate need not
comply with Section 102.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"Foreign Government Securities" has the meaning specified in Section 505.
"Funded Debt" means any Indebtedness maturing by its terms more than one
year from the date of the issuance thereof, including any Indebtedness renewable
or extendible at the option of the obligor to a date later than one year from
the date of the original issuance thereof.
"Holder" or "holder" means, with respect to a Registered Security, the
Person in whose name at the time a particular Registered Security is registered
in the Security Register and, with respect to a Bearer Security and/or a Coupon,
the bearer thereof.
"Indebtedness" of any corporation means all indebtedness representing
money borrowed which is created, assumed, incurred or guaranteed in any manner
by such corporation or for which such corporation is otherwise responsible or
liable (whether by agreement to purchase indebtedness of, or to supply funds to
or invest in, others).
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 202 and Section 301, as the case may be.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
<PAGE> 13
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"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Lien" means any mortgage, pledge, security interest, lien, charge or
other encumbrance, but does not include any of the foregoing types of
encumbrances that are incidental to the conduct of the business of the Company
or any Restricted Subsidiary or the ownership of the property and assets of any
of them and that were not incurred in connection with the incurrence of any
Indebtedness. Such incidental encumbrances that are to be excluded from the term
"Liens" include without limitation: pledges or deposits made to secure
obligations of the Company or a Restricted Subsidiary under workmen's
compensation laws or similar legislation; liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's, vendors', repairmen's or other
like liens incurred in the ordinary course of business; governmental (Federal,
state or municipal) liens arising out of contracts for the purchase of products
of the Company or a Restricted Subsidiary, and deposits or pledges to obtain the
release of any of the foregoing liens; liens created by or resulting from any
litigation or legal proceeding that is currently being contested in good faith
by appropriate proceedings; leases made or existing on Principal Property
entered into in the ordinary course of business by the Company or a Restricted
Subsidiary; landlords' liens under leases of Principal Property to which the
Company or a Restricted Subsidiary is a party; zoning restrictions, easements,
licenses or restrictions on the use of Principal Property or minor
irregularities in the title thereto; deposits in connection with bids, tenders
or contracts (other than for the payment of money) to which the Company or any
Restricted Subsidiary is a party; deposits to secure public or statutory
obligations of the Company or any Restricted Subsidiary; deposits in connection
with obtaining or maintaining self-insurance or to obtain the benefits of any
law, regulation or arrangement pertaining to unemployment insurance, old age
pensions, social security or similar matters; deposits of cash or obligations of
the United States of America to secure surety, appeal or customs bonds to which
the Company or any Restricted Subsidiary is a party; and liens for taxes or
assessments or governmental charges or levies not yet due or delinquent, or
which can thereafter be paid without penalty, or which are being contested in
good faith by appropriate proceedings.
"Market Exchange Rate" has the meaning specified in Section 410(i).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Medium-Term Debt Securities" has the meaning specified in Section 301.
"Medium-Term Debt Securities Certificate" shall mean a certificate signed
by the Chairman of the Board, the President, any Vice President, the Treasurer,
the Controller, any Secretary or Assistant Treasurer, Assistant Controller or
Assistant Secretary of the Company, or any other employee of the Company
designated by a Board Resolution as having the authority to deliver a
Medium-Term Debt Securities Certificate hereunder.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or any Vice President, and by the Treasurer, the
Controller, the Secretary or any Assistant Treasurer, Assistant Controller or
Assistant Secretary, of the Company, and delivered to the Trustee. Each such
Officers' Certificate shall contain the statements provided in Section 102 if
and to the extent required by the provisions of such Section.
"Official Currency Unit Exchange Rate" means, with respect to any payment
to be made hereunder, the exchange rate between the relevant currency unit and
the currency or currency unit of payment calculated by the Exchange Rate Agent
for the Securities of the relevant series (in the case of ECU, reported by the
Commission of the European
<PAGE> 14
6
Communities and on the date hereof based on the rates in effect at 2:30 p.m.,
Brussels time, on the exchange markets of the Component Currencies of ECU), on
the Business Day (in the city in which such Exchange Rate Agent has its
principal office) immediately preceding delivery of any Exchange Rate Officers'
Certificate.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company. Each Opinion of Counsel shall contain
the statements provided in Section 102 if and to the extent required by the
provisions of such Section.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 602.
"Outstanding" or "outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered or
deemed delivered to the Trustee for cancelation;
(ii) Securities for whose payment or redemption money in the
necessary amount and in the required currency or currency unit has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 405 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Outstanding Securities or the
number of votes entitled to be cast by each Holder of a Security in respect of
such Security at any such meeting, (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 602, (ii) the principal amount of a Security
denominated in a Foreign Currency or currency unit shall be the Dollar
equivalent obtained by converting the specified Foreign Currency or currency
unit into Dollars at the Market Exchange Rate on the date of such determination
(or, in the case of a Security denominated in a currency unit for which there is
no Market Exchange Rate, the Dollar equivalent obtained by adding together the
results obtained by converting the Specified Amount of each Component Currency
into Dollars at the Market Exchange Rate for each such Component Currency on the
date of such determination) of the principal amount (or, in the case of an
Original Issue Discount Security, of the amount determined as provided in (i)
above) of such Security, and (iii) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded
<PAGE> 15
7
as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means the Trustee or any other Person authorized by the
Company to pay the principal of (and premium, if any) or interest, if any, on
any Securities on behalf of the Company.
"Person" or "person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest, if any, on the Securities of that series are payable as specified
in accordance with Section 202 or Section 301, as the case may be.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 405 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means all land, land improvements, buildings,
machinery and equipment constituting a manufacturing facility, a printing
facility, a warehouse facility, a distribution facility, a television broadcast
facility, a cable television facility or an office facility (including any
portion thereof) which facility (a) is owned by or leased to the Company or any
Restricted Subsidiary, (b) is located within the United States, and (c) has an
acquisition cost plus capitalized improvements in excess of 1% Consolidated Net
Worth as of the date of such determination, other than (i) any such facility, or
portion thereof, which has been financed by obligations issued by or on behalf
of a state, a Territory or a possession of the United States, or any political
subdivision of any of the foregoing, or the District of Columbia, the interest
on which is, or at the time of issuance of such obligations was determined by
counsel to be, excludable from the gross income of the holders thereof (other
than a "substantial user" of such facility or a "related person" as those terms
were used in Section 147 of the Internal Revenue Code of 1986 (the "Code"))
pursuant to the provisions of Section 103 and related Sections of the Code (or
any similar provisions hereafter enacted) as in effect at the time of issuance
of such obligations, (ii) any such facility which the Board of Directors may by
Board Resolution declare is not of material importance to the Company and the
Restricted Subsidiaries taken as a whole, and (iii) any such facility, or
portion thereof, owned or leased jointly or in common with one or more Persons
other than the Company and any Subsidiary and in which the interest of the
Company and all Subsidiaries does not exceed 50%.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price, in the currency or currency unit in which such Security is
payable, at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security registered in the Security
Register (including without limitation any Security in temporary or definitive
global registered form).
<PAGE> 16
8
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 202 or Section 301, as the case may be,
which date shall be, unless otherwise specified pursuant to Section 202 or
Section 301, as the case may be, the fifteenth day preceding such Interest
Payment Date, whether or not such day shall be a Business Day.
"Required Currency" has the meaning specified in Section 115.
"Responsible Trust Officer", when used with respect to the Trustee, means
the chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Securities" means any shares of the capital stock or
Indebtedness of any Restricted Subsidiary.
"Restricted Subsidiary" means any Subsidiary (a) which has substantially
all its property and transacts substantially all its business within the United
States of America, and (b) which owns or is a lessee of any Principal Property;
provided, however, that the term "Restricted Subsidiary" shall not include any
Subsidiary (i) which is acquired or organized after [date of Indenture] for the
purpose of acquiring the stock, business or assets of any Person other than the
Company or any Restricted Subsidiary (whether such acquisition is effected by
merger, consolidation, acquisition of stock or assets, or any other transaction
analogous in purpose and effect), and (ii) which has (together with its
consolidated subsidiaries and after intercompany eliminations) consolidated
total assets of not more than 10% of the consolidated total assets of the
Company and its subsidiaries (including such Subsidiary), all as determined in
accordance with generally accepted accounting principles and, at the Company's
election, as of the date of such acquisition of stock, business or assets (and
after giving effect thereto) or within 30 days after such date.
"Sale and Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary of any
Principal Property (whether such Principal Property is now owned or hereafter
acquired) that has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person, other than (a) temporary leases for a
term, including renewals at the option of the lessee, of not more than three
years; (b) leases between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries; and (c) leases of Principal Property executed by the
time of, or within 180 days after the latest of, the acquisition, the completion
of construction or improvement (including any improvements on property which
will result in such property becoming Principal Property), or the commencement
of commercial operation of such Principal Property.
"Secured Indebtedness" means (a) Indebtedness of the Company or a
Restricted Subsidiary which is secured by any Lien upon any Principal Property
or Restricted Securities and (b) Indebtedness of the Company or a Restricted
Subsidiary in respect of any conditional sale or other title retention agreement
covering Principal Property or Restricted Securities; but "Secured Indebtedness"
shall not include any of the following:
(i) Indebtedness of the Company and the Restricted Subsidiaries
outstanding on [date of Indenture] secured by then existing Liens upon, or
incurred in connection
<PAGE> 17
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with conditional sales agreements or other title retention agreements with
respect to, Principal Property or Restricted Securities;
(ii) Indebtedness which is secured by (A) purchase money Liens upon
Principal Property or Restricted Securities acquired after [date of
Indenture], or (B) Liens placed on Principal Property after [date of
Indenture], during construction or improvement thereof (including any
improvements on property which resulted or will result in such property
becoming Principal Property) or placed thereon within 180 days after the
later of acquisition, completion of construction or improvement or the
commencement of commercial operation of such Principal Property or
improvement, or placed on Restricted Securities acquired after [date of
Indenture], or (C) conditional sale agreements or other title retention
agreements with respect to any Principal Property or Restricted Securities
acquired after [date of Indenture], if (in each case referred to in this
subparagraph (ii)) (x) such Lien or agreement secures all or any part of
the Indebtedness incurred for the purpose of financing all or any part of
the purchase price or cost of construction of such Principal Property or
improvement or Restricted Securities and (y) such Lien or agreement does
not extend to any Principal Property or Restricted Securities other than
the Principal Property or Restricted Securities so acquired or the
Principal Property, or portion thereof, on which the property so
constructed, or such improvement, is located; PROVIDED, HOWEVER, that the
amount by which the aggregate principal amount of Indebtedness secured by
any such Lien or agreement exceeds the cost to the Company or such
Restricted Subsidiary of the related acquisition, construction or
improvement shall be considered to be "Secured Indebtedness";
(iii) Indebtedness which is secured by Liens on Principal Property
or Restricted Securities, which Liens exist at the time of acquisition (by
any manner whatsoever) of such Principal Property or Restricted Securities
by the Company or a Restricted Subsidiary;
(iv) Indebtedness, whether secured by any Lien or not, of Restricted
Subsidiaries owing to the Company or any other Restricted Subsidiary and
Indebtedness of the Company owing to any Restricted Subsidiary;
(v) in the case of any corporation which shall have become or
becomes (by any manner whatsoever), as the case may be, a Restricted
Subsidiary after [date of Indenture], Indebtedness which is secured by
Liens upon, or conditional sale agreements or other title retention
agreements with respect to, its property which constitutes Principal
Property or Restricted Securities, which Liens shall have existed or
exist, as the case may be, at the time such corporation shall have become
or becomes, as the case may be, a Restricted Subsidiary;
(vi) guarantees by the Company of Secured Indebtedness and
Attributable Debt of any Restricted Subsidiaries and guarantees by a
Restricted Subsidiary of Secured Indebtedness and Attributable Debt of the
Company and any other Restricted Subsidiaries;
(vii) Indebtedness arising from any Sale and Leaseback Transaction;
(viii) Indebtedness secured by Liens on property of the Company or a
Restricted Subsidiary in favor of the United States of America, any state,
Territory or possession thereof, or in the District of Columbia, or any
department, agency or instrumentality or political subdivision of the
United States of America or any state, Territory or possession thereof, or
the District of Columbia, or in favor of any other country or any
political subdivision thereof, if such Indebtedness was incurred for the
purpose of financing all or any part of the purchase price or the cost of
construction of the property subject to such Liens; PROVIDED, HOWEVER,
that the amount by which
<PAGE> 18
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the aggregate principal amount of Indebtedness secured by any such Lien
exceeds the cost to the Company or such Restricted Subsidiary of the
related acquisition or construction shall be considered to be "Secured
Indebtedness"; and
(ix) the replacement, extension or renewal (or successive
replacements, extensions or renewals) of any Indebtedness (in whole or in
part) excluded from the definition of "Secured Indebtedness" by
subparagraphs (i) through (viii) above; PROVIDED, HOWEVER, that no Lien
securing, or conditional sale or title retention agreement with respect
to, such Indebtedness shall extend to or cover any Principal Property or
any Restricted Securities, other than such property which secured the
Indebtedness so replaced, extended or renewed (plus improvements on or to
any such Principal Property); PROVIDED FURTHER, HOWEVER, that to the
extent that such replacement, extension or renewal increased or increases
the principal amount of Indebtedness plus any accrued and unpaid interest
or capitalized interest payable thereon secured by such Lien or was or is
in a principal amount in excess of the principal amount of Indebtedness
plus any accrued and unpaid interest or capitalized interest payable
thereon excluded from the definition of "Secured Indebtedness" by
subparagraphs (i) through (viii) above, the amount of such increase or
excess shall be considered to be "Secured Indebtedness".
In no event shall the foregoing provisions be interpreted to mean or their
operation to cause the same Indebtedness to be included more than once in the
calculation of "Secured Indebtedness" as that term is used in this Indenture.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities (including Medium-Term Debt
Securities) authenticated and delivered under this Indenture and, in the case of
any Beater Security, shall include where appropriate any Coupons appertaining
thereto.
"Security Register" has the meaning specified in Section 404.
"Security Registrar" means the Person appointed as the initial Security
Registrar in Section 404 or any Person appointed by the Company as a successor
or replacement Security Registrar.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 406.
"Specified Amount" has the meaning specified in Section 410(i).
"Stated Maturity", when used with respect to any Security (or Coupon, if
any, representing an installment of interest) or any installment of principal
thereof or interest thereon, means the date specified in such Security (or
Coupon) as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means any corporation a majority of the Voting Shares of
which are at the time owned or controlled, directly or indirectly, by the
Company or by one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
<PAGE> 19
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, and as in force at the date as of which
this instrument was executed, except as provided in Section 1005.
"United States" means the United States of America (including the states
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"U.S. Government Obligations" has the meaning specified in Section 505.
"Valuation Date" has the meaning specified in Section 410(e).
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Shares" means, as to shares of a particular corporation,
outstanding shares of stock of any class of such corporation entitled to vote in
the election of directors, excluding shares entitled so to vote only upon the
happening of some contingency.
SECTION 102. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Unless expressly otherwise specified with respect to any certificate or
opinion provided for in this Indenture, every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture (other than annual certificates provided pursuant to Section 1106)
shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
<PAGE> 20
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Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of any series may be embodied in and
evidenced by (i) one or more instruments of substantially similar tenor signed
by such Holders in person or by proxies duly appointed in writing, (ii) the
record of such Holders voting in favor thereof, either in person or by proxies
duly appointed in writing, at any meeting of Holders of Securities of such
series duly called and held in accordance with the provisions of Article
Fourteen, or (iii) a combination of any such record and one or more instruments
of substantially similar tenor signed by such Holders in person or by proxies
duly appointed in writing. Except as herein otherwise expressly provided, such
action shall become effective when such record and/or instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such record or instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such proxy shall be sufficient for any purpose of this Indenture and
(subject to Section 701) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 1406.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed by any trust company, bank,
banker or other depository, wherever situated, showing that at the date therein
mentioned such Person had on deposit with such depository, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, (2) such Bearer Security is
produced to the Trustee by some other Person, (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding.
<PAGE> 21
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(d) The fact and date of execution of any such instrument or writing
pursuant to clause (c) above, the authority of the Person executing the same and
the principal amount and serial numbers of Bearer Securities held by the Person
so executing such instrument or writing and the date of holding the same may
also be proved in any other manner which the Trustee deems sufficient; and the
Trustee may in any instance require further proof with respect to any of the
matters referred to in this clause.
(e) The principal amount and serial numbers of Registered Securities held
by any Person and the date of holding the same shall be proved by the Security
Register.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of a Holder shall bind every future Holder of the same Security
and/or Coupon and the Holder of every Security and/or Coupon issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security and/or Coupon.
(g) Whenever any Act is to be taken hereunder by the Holders of two or
more series of Securities denominated in different currencies (or currency
units), then, for the purpose of determining the principal amount of Securities
held by such Holders, the aggregate principal amount of the Securities
denominated in a Foreign Currency (or any currency unit) shall be deemed to be
that amount determined by the Company or by an authorized Exchange Rate Agent
and evidenced to the Trustee by an Officers' Certificate as of the date the
taking of such Act by the Holders of the requisite percentage in principal
amount of the Securities is evidenced to the Trustee to be equal to the Dollar
equivalent obtained by converting the specified Foreign Currency or currency
unit into Dollars at the Market Exchange Rate on such date (or, in the case of a
Security denominated in a currency unit for which there is no Market Exchange
Rate, the Dollar equivalent obtained by adding together the results obtained by
converting the Specified Amount of each Component Currency into Dollars at the
Market Exchange Rate for each such Component Currency on such date) of the
principal amount (or, in the case of an Original Issue Discount Security, the
principal amount thereof that would be due and payable as of the declaration of
acceleration of the Maturity thereof pursuant to Section 602) of such Security.
An Exchange Rate Agent may be authorized in advance or from time to time by the
Company. Any such determination by the Company or by any such Exchange Rate
Agent shall be conclusive and binding on all Holders, the Company and the
Trustee, and neither the Company nor any such Exchange Rate Agent shall be
liable therefor in the absence of bad faith.
(h) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other 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 Act may be given before or after such record date, but only the 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 Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months
after the record date.
<PAGE> 22
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SECTION 105. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or other Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and delivered in person or by any other means to the Trustee
at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and delivered in person, mailed, first-class postage
prepaid, or sent by overnight courier or, until such time as the Company
shall have notified the Trustee in writing that it shall no longer accept
delivery of notice by telecopy or telex, given by telecopy or by telex
(with answerback received) to the Company addressed to it at the address
of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company, or at its telecopy or telex number from time to
time furnished in writing to the Trustee expressly for purposes of this
Indenture, Attention: Secretary.
SECTION 106. Notice to Holders; Waiver. (a) Where this Indenture provides
for notice to Holders of any event:
(i) if any of the Securities affected by such event are Registered
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided or unless otherwise specified in such
Securities) if in writing and delivered in person, mailed, first-class
postage prepaid or sent by overnight courier, to each Holder affected by
such event, at his address as it appears in the Security Register, within
the time prescribed for the giving of such notice, and
(ii) if any of the Securities affected by such event are Bearer
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided or unless otherwise specified in such
Securities) if (A) published once in an Authorized Newspaper in New York
City and London and, if applicable, in Luxembourg or such other place of
publication as may be required pursuant to the rules and regulations of
any securities exchange on which such Securities are listed, and (B)
delivered in person, mailed, first-class postage prepaid or sent by
overnight courier to such Persons whose names were previously filed with
the Trustee, within the time prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice to Holders of
Registered Securities in the manner specified above, then such notification as
shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In case by reason of the suspension of
publication of any Authorized Newspaper or Authorized Newspapers or by reason of
any other cause it shall be impracticable to publish any notice to Holders of
Bearer Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose hereunder.
(b) In any case where notice to a Holder of Registered Securities is given
in any manner specified in paragraph (a) above, such notice shall be
conclusively presumed to have been duly given, whether or not such Holder
receives such notice. In any case where notice to Holders of Registered
Securities is given in any manner specified in paragraph (a) above, neither the
failure to deliver, mail or send such notice, nor any defect in any
<PAGE> 23
15
notice so mailed or sent, to any particular Holder of a Registered Security
shall affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided in paragraph (a) above,
nor any defect in any notice so published, shall affect the sufficiency of any
notice to Holders of Registered Securities given as provided herein.
(c) Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with the duties imposed by any of Sections 310 to
317, inclusive, of the Trust Indenture Act through operation of Section 318(c)
thereof, such imposed duties shall control.
SECTION 108. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 109. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 111. Benefits of Indenture. Nothing in this Indenture or in the
Securities or Coupons, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law. THIS INDENTURE AND THE SECURITIES AND COUPONS
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SECTION 113. Legal Holidays. Except as otherwise specified as contemplated
by Section 202 or Section 301, as the case may be, in any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any Security or
Coupon shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of such Security or
Coupon) payment of interest or principal (and premium, if any) need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated Maturity, as
the case may be, provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, to the next succeeding Business Day at such Place of Payment.
SECTION 114. Moneys of Different Currencies To Be Segregated. The Trustee
shall segregate moneys, funds and accounts held by the Trustee hereunder in one
currency (or currency unit) from any moneys, funds or accounts in any other
currencies (or currency units), notwithstanding any provision herein which would
otherwise permit the Trustee to commingle such amounts.
<PAGE> 24
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SECTION 115. Payment To Be in Proper Currency. In the case of any Security
denominated in any particular currency or currency unit (the "Required
Currency"), subject to applicable law and except as otherwise provided herein,
therein or in or pursuant to the related Board Resolution, Medium-Term Debt
Securities Certificate or supplemental indenture, the obligation of the Company
to make any payment of principal, premium or interest thereon shall not be
discharged or satisfied by any tender by the Company, or recovery by the
Trustee, in any currency or currency unit other than the Required Currency,
except to the extent that such tender or recovery shall result in the Trustee's
timely holding the full amount of the Required Currency then due and payable. If
any such tender or recovery is made in other than the Required Currency, the
Trustee may take such actions as it considers appropriate to exchange such other
currency or currency unit for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, the Company shall be liable for any
shortfall or delinquency in the full amount of the Required Currency then due
and payable, and in no circumstances shall the Trustee be liable therefor. The
Company hereby waives any defense of payment based upon any such tender or
recovery which is not in the Required Currency, or which, when exchanged for the
Required Currency by the Trustee, is less than the full amount of the Required
Currency then due and payable
SECTION 116. Language of Notices, etc. Any request, demand, authorization,
direction, notice, consent or waiver required or permitted under this Indenture
shall be in the English language, except that any published notice may be in an
official language of the country of publication.
SECTION 117. Changes in Exhibits. At any time and from time to time, the
Company may substitute a new form, or add new forms, of the Exhibits hereto.
Such substitution shall be effective upon receipt by the Trustee of such new
form of Exhibit and a Board Resolution or Officers' Certificate adopting such
new form of Exhibit, and thereafter all references in this Indenture to such
Exhibit shall be deemed to refer to such new form of Exhibit.
ARTICLE TWO
Issuance of Securities
SECTION 201. Creation of Securities in Amount Unlimited. An unlimited
aggregate principal amount of Securities may be issued pursuant to this Article
Two and, in the case of Medium-Term Debt Securities, pursuant to Article Three.
The Securities (including Medium-Term Debt Securities) may be authenticated and
delivered, as authorized by the Board of Directors, in an unlimited number of
series.
SECTION 202. Documents Required for Issuance of Each Series of Securities
Other than Medium-Term Debt Securities. At any time and from time to time,
Securities of each series created pursuant to the provisions of this Article Two
may be executed by the Company and delivered to the Trustee and shall be
authenticated by the Trustee and shall be authenticated by the Trustee and
delivered to, or upon the order of, the Company upon receipt by the Trustee of
the following:
(a) A Board Resolution or Board Resolutions authorizing the
execution, authentication and delivery of the Securities of the series,
and specifying:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Article Two (except
<PAGE> 25
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for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 403, 404, 405, 1006 or 1207 and
except for any Securities which, pursuant to Section 402, are deemed
never to have been authenticated and delivered hereunder);
(3) the date or dates on which the principal (and premium, if
any) of any of the Securities of the series are payable or the
method of determination thereof;
(4) the rate or rates, or the method of determination thereof,
at which any of the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and
the Regular Record Date for the interest payable on any Registered
Securities on any Interest Payment Date;
(5) the place or places where the principal of (and premium,
if any) and interest, if any, on any of the Securities and Coupons,
if any, of the series shall be payable and the office or agency for
the Securities of the series maintained by the Company pursuant to
Section 1102;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the Securities
of the series may be redeemed, in whole or in part, at the option of
the Company;
(7) the terms of any sinking fund and the obligation, if any,
of the Company to redeem or purchase Securities of the series
pursuant to any sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or
in part;
(8) the terms of the obligation of the Company, if any, to
permit the conversion of the Securities of the series into stock or
other securities of the Company or of any other corporation;
(9) the terms, if any, for the attachment to Securities of the
series of warrants, options or other rights to purchase or sell
stock or other securities of the Company;
(10) if other than denominations of $1,000 and in any integral
multiple thereof, if Registered Securities, and $5,000, if Bearer
Securities, for Securities denominated in Dollars, the denominations
in which the Securities of the series shall be issuable;
(11) if other than the principal amount thereof, the portion
of the principal amount of any of the Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 602;
(12) the application, if any, of Section 503, or such other
means of satisfaction and discharge as may be specified for the
Securities and Coupons, if any, for a series;
(13) any deletions or modifications of or additions to the
Events of Default set forth in Section 601 or covenants of the
Company set forth in Article Nine or Eleven pertaining to the
Securities of the series (including without limitation whether the
provisions of Section 1104 or Section 1105 shall not be applicable
to the Securities of the series);
<PAGE> 26
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(14) the forms of the Securities and Coupons, if any, of the
series;
(15) if other than Dollars, the currency or currencies, or
currency unit or units, in which the Securities of such series will
be denominated and/or in which payment of the principal of (and
premium, if any) and interest, if any, on any of the Securities of
the series shall be payable and the Exchange Rate Agent, if any, for
such series;
(16) if the principal of (and premium, if any) or interest, if
any, on any of the Securities of the series are to be payable at the
election of the Company or a Holder thereof, or under some or all
other circumstances, in a currency or currencies, or currency unit
or units, other than that in which the Securities are denominated,
the period or periods within which, and the terms and conditions
upon which, such election may be made, or the other circumstances
under which any of the Securities are to be so payable, including
without limitation the application of Section 410(b) and any
deletions to, modifications of or additions to the provisions
thereof, and any provision requiring the Holder to bear currency
exchange costs by deduction from such payments;
(17) if the amount of payments of principal of (and premium,
if any) or interest, if any, on any of the Securities of the series
may be determined with reference to an index based on (i) a currency
or currencies or currency unit or units other than that in which
such Securities are stated to be payable or (ii) any method, not
inconsistent with the provisions of this Indenture, specified in or
pursuant to such Board Resolution, then in each case (i) and (ii)
the manner in which such amounts shall be determined;
(18) whether the Securities of the series are to be issued as
Registered Securities or Bearer Securities (with or without
Coupons), or any combination thereof, whether Bearer Securities may
be exchanged for Registered Securities of the series and whether
Registered Securities may be exchanged for Bearer Securities of the
series (if permitted by applicable laws and regulations) and the
circumstances under which and the place or places where any such
exchanges, if permitted, may be made; and whether any Securities of
the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in
definitive global form with or without Coupons and, if so, whether
beneficial owners of interests in any such definitive global
Security may exchange such interests for Securities of such series
and of like tenor of any authorized form and denomination and the
circumstances under which and the place or places where any such
exchanges may occur, if other than in the manner provided in Section
404;
(19) if the Securities and Coupons, if any, of the series are
to be issued upon the exercise of warrants, the time, manner and
place for such Securities and Coupons, if any, to be authenticated
and delivered;
(20) whether and under what circumstances and with what
procedures and documentation the Company will pay additional amounts
on any of the Securities and Coupons, if any, of the series to any
Holder who is not a U.S. Person (including a definition of such
term), in respect of any tax assessment or governmental charge
withheld or deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay additional amounts
(and the terms of any such option);
(21) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular
<PAGE> 27
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Record Date for such interest, the manner in which, or the Person to
whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the
Coupons appertaining thereto as they severally mature and the extent
to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid
if other than in the manner provided in Section 403; and
(22) any other terms of any of the Securities of the series
(which terms shall not be inconsistent with the provisions of this
Indenture).
If any of the terms of the series are established by action taken
pursuant to a Board Resolution or Board Resolutions, an Officers'
Certificate certifying as to such action also shall be delivered to the
Trustee.
(b) In case the Securities of the series to be authenticated and
delivered are to be created pursuant to one or more supplemental
indentures, such supplemental indenture or indentures, accompanied by a
Board Resolution or Board Resolutions authorizing such supplemental
indenture or indentures and designating the new series to be created and
prescribing pursuant to paragraph (a) above, consistent with the
applicable provisions of this Indenture, the terms and provisions relating
to the Securities of the series.
(c) Either (i) a certificate or other official document evidencing
the due authorization, approval or consent of any governmental body or
bodies, at the time having jurisdiction in the premises, together with an
Opinion of Counsel that the Trustee is entitled to rely thereon and that
the authorization, approval or consent of no other governmental body is
required, or (ii) an Opinion of Counsel that no authorization, approval or
consent of any governmental body is required.
(d) An Opinion of Counsel that all instruments furnished the Trustee
conform to the requirements of this Indenture and constitute sufficient
authority hereunder for the Trustee to authenticate and deliver the
Securities and to deliver the Coupons, if any, of the series; that all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of the Securities and delivery of the Coupons,
if any, of the series have been complied with and the Company is duly
entitled to the authentication and delivery of the Securities and Coupons,
if any, of the series in accordance with the provisions of this Indenture;
that all laws and requirements with respect to the form and execution by
the Company of the supplemental indenture, if any, and the execution and
delivery by the Company of the Securities and Coupons, if any, of the
series have been complied with; that the Company has corporate power to
execute and deliver the supplemental indenture, if any, and to issue the
Securities and Coupons, if any, of the series and has duly taken all
necessary corporate action for those purposes; and that the supplemental
indenture, if any, as executed and delivered and the Securities and
Coupons, if any, of the series, when issued, will be the legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect, the
enforceability of the Company's obligations also being subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law)); that the Securities and
Coupons, if any, of the series, when issued, will be entitled to the
benefits of this Indenture, equally and ratably with all other Securities
and Coupons, if any, of such series theretofore issued and then
outstanding hereunder; and that the amount of Securities then outstanding
under this Indenture, including the Securities of the series, will not
exceed the amount at the time permitted by law or this Indenture.
<PAGE> 28
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(e) An Officers' Certificate stating that the Company is not in
default under this Indenture and that the issuance of the Securities and
Coupons, if any, of the series will not result in any breach of any of the
terms, conditions or provisions of, or constitute a default under, the
Company's certificate of incorporation or by-laws or any indenture,
mortgage, deed of trust or other agreement or instrument to which the
Company is a party or by which it is bound, or any order of any court or
administrative agency entered in any proceeding to which the Company is a
party or by which it may be bound or to which it may be subject; and that
all conditions precedent provided in this Indenture relating to the
authentication and delivery of the Securities and Coupons, if any, of the
series have been complied with.
(f) Such other documents as the Trustee may reasonably require.
ARTICLE THREE
Issuance of Medium-Term Debt Securities
SECTION 301. Documents Required for Issuance of Each Series of Medium-Term
Debt Securities. At any time, and from time to time, Securities (sometimes
referred to herein as "Medium-Term Debt Securities") of each series created
pursuant to the provisions of this Article Three may be executed by the Company
and delivered to the Trustee and shall be authenticated by the Trustee and
delivered to, or upon the order of, the Company upon receipt by the Trustee of
the following:
(a) A Board Resolution or Board Resolutions authorizing the
execution, authentication and delivery of Medium-Term Debt Securities up
to a specified aggregate principal amount, in such series and subject to
such terms as shall be established by officers of the Company authorized
by such resolutions to establish such series and terms.
(b) A Medium-Term Debt Securities Certificate requesting the Trustee
to authenticate and deliver Medium-Term Debt Securities of a series as
contemplated by Section 402, and specifying the following terms with
respect to the Medium-Term Debt Securities of the particular series,
authorized pursuant to the Board Resolution or Board Resolutions referred
to in paragraph (a) above:
(1) the title of the Medium-Term Debt Securities of the series
(which shall distinguish the Medium-Term Debt Securities of the
series from all other Securities);
(2) the date of the Medium-Term Debt Securities of the series;
(3) any limit upon the aggregate principal amount of the
Medium-Term Debt Securities of the series which may be authenticated
and delivered under this Article Three (except for Medium-Term Debt
Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Medium-Term Debt
Securities of the series pursuant to Section 403, 404, 405, 1006 or
1207 and except for any Medium-Term Debt Securities which, pursuant
to Section 402, are deemed never to have been authenticated and
delivered hereunder);
(4) the date or dates on which the principal (and premium, if
any) of any of the Medium-Term Debt Securities of the series are
payable or the method of determination thereof, which in any event
may not be less than nine months subsequent to the date of the first
authentication of Medium-Term Debt Securities of the series;
<PAGE> 29
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(5) the rate or rates, or the method of determination thereof,
at which any of the Medium-Term Debt Securities of the series shall
bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest
shall be payable and the Regular Record Date for the interest
payable on any Medium-Term Debt Securities of the series that are
Registered Securities on any Interest Payment Date;
(6) the place or places where the principal of (and premium,
if any) and interest, if any, on any of the Medium-Term Debt
Securities and Coupons, if any, of the series shall be payable and
the office or agency for the Medium-Term Debt Securities of the
series maintained by the Company pursuant to Section 1102;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the Medium-Term
Debt Securities of the series may be redeemed, in whole or in part,
at the option of the Company;
(8) the terms of any sinking fund and the obligation, if any,
of the Company to redeem or purchase Medium-Term Debt Securities of
the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions
upon which Medium-Term Debt Securities of the series shall be
redeemed or purchased, in whole or in part;
(9) the terms of the obligation of the Company, if any, to
permit the conversion of the Medium-Term Debt Securities of the
series into stock or other securities of the Company or of any other
corporation;
(10) the terms, if any, for the attachment to Medium-Term Debt
Securities of the series of warrants, options or other rights to
purchase or sell stock or other securities of the Company;
(11) if other than denominations of $1,000 and in any integral
multiple thereof, if Registered Securities, and $5,000 if Bearer
Securities, for Medium-Term Debt Securities denominated in Dollars,
the denominations in which the Medium-Term Debt Securities of the
series shall be issuable;
(12) if other than the principal amount thereof, the portion
of the principal amount of any of the Medium-Term Debt Securities of
the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 602;
(13) the application, if any, of Section 503, or such other
means of satisfaction and discharge as may be specified for the
Medium-Term Debt Securities and Coupons, if any, of the series;
(14) any deletions or modifications of or additions to the
Events of Default set forth in Section 601 or covenants of the
Company set forth in Article Nine or Eleven pertaining to the
Medium-Term Debt Securities of the series (including without
limitation whether the provisions of Section 1104 or Section 1105
shall not be applicable to the Medium-Term Debt Securities of the
series);
(15) if other than Dollars, the currency or currencies, or
currency unit or units, in which the Medium-Term Debt Securities of
the series will be denominated and/or in which payment of the
principal of (and premium, if any) and interest, if any, on any of
the Medium-Term Debt Securities of the series shall be payable and
the Exchange Rate Agent, if any, for such series;
<PAGE> 30
22
(16) if the principal of (and premium, if any) or interest, if
any, on any of the Securities of the series are to be payable at the
election of the Company or Holder thereof, or under some or all
other circumstances, in a currency or currencies, or currency unit
or units, other than that in which the Medium-Term Debt Securities
are stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made, or
the other circumstances under which any of the Medium-Term Debt
Securities are to be so payable, including without limitation the
application of Section 410(b) and any deletions to, modification of
or additions to the provisions thereof, and any provision requiring
the Holder to bear currency exchange costs by deduction from such
payments;
(17) if the amount of payments of principal of (and premium,
if any) or interest, if any, on any of the Medium-Term Debt
Securities of the series may be determined with reference to an
index based on (i) a currency or currencies or currency unit or
units other than that in which such Securities are stated to be
payable or (ii) any method, not inconsistent with the provisions of
this Indenture, specified in or pursuant to such Board Resolution,
then in each case (i) and (ii) the manner in which such amounts
shall be determined;
(18) whether the Medium-Term Debt Securities of the series are
to be issued as Registered Securities or Bearer Securities (with or
without Coupons), or any combination thereof, whether Bearer
Securities may be exchanged for Registered Securities of the series
and whether Registered Securities may be exchanged for Bearer
Securities of the series (if permitted by applicable laws and
regulations) and the circumstances under which and the place or
places where any such exchanges, if permitted, may be made; and
whether any Medium-Term Debt Securities of the series are to be
issuable initially in temporary global form and whether any
Medium-Term Debt Securities of the series are to be issuable in
definitive global form with or without Coupons and, if so, whether
beneficial owners of interests in any such definitive global
Medium-Term Debt Security may exchange such interests for
Medium-Term Debt Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which
and the place or places where any such exchange may occur, if other
than in the manner provided in Section 404;
(19) if the Medium-Term Debt Securities and Coupons, if any,
of the series are to be issued upon the exercise of warrants, the
time, manner and place for such Medium-Term Debt Securities and
Coupons, if any, of the series to be authenticated and delivered;
(20) whether and under what circumstances and with what
procedures and documentation the Company will pay additional amounts
on any of the Medium-Term Debt Securities of the series to any
Holder who is not a U.S. Person (including a definition of such
term), in respect of any tax assessment or governmental charge
withheld or deducted and, if so, whether the Company will have the
option to redeem such Medium-Term Debt Securities rather than pay
additional amounts (and the terms of any such option);
(21) the Person to whom any interest on any Medium-Term Debt
Security of the series shall be payable, if other than the Person in
whose name that Medium-Term Debt Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, the manner in which, or
the person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and
surrender of the Coupons appertaining thereto as they severally
mature and the extent to which, or the manner in which, any interest
payable on a temporary global Medium-Term
<PAGE> 31
23
Debt Security on an Interest Payment Date will be paid if other than
in the manner provided in Section 403;
(22) if other than the forms set forth in Exhibit A hereto,
the forms of the Medium-Term Debt Securities and Coupons, if any, of
the series; and
(23) any other terms of any of the Medium-Term Debt Securities
of the series (which terms shall not be inconsistent with the
provisions of this Indenture).
Unless the Company shall be required to deliver an Officers'
Certificate pursuant to paragraph (d) below in connection with the
authentication of the Medium-Term Debt Securities of the series, the
delivery of such Medium-Term Debt Securities Certificate to the Trustee
shall be deemed to be a certification by the Company that all matters
certified in the most recent Officers' Certificate delivered to the
Trustee pursuant to paragraph (d) below continue to be true and correct,
as if such Officers' Certificate related to the Medium-Term Debt
Securities covered by such Medium-Term Debt Securities Certificate, on and
as of the date of such Medium-Term Debt Securities Certificate. The
delivery of such Medium-Term Debt Securities Certificate also shall be
deemed to be a certification that the Board Resolution or Board
Resolutions referred to in paragraph (a) above are in full force and
effect on and as of the date of such Medium-Term Debt Securities
Certificate and that the terms and form or forms of the Medium-Term Debt
Securities and Coupons, if any, of the series have been established by an
officer or officers of the Company authorized by such Board Resolution or
Board Resolutions in accordance with the provisions thereof and hereof.
(c) If (i) the Company shall not have previously delivered to the
Trustee an Opinion of Counsel to the effect set forth in this paragraph
(c) with respect to the Medium-Term Debt Securities authorized pursuant to
the Board Resolution or Board Resolutions referred to in paragraph (a)
above or (ii) if the Medium-Term Debt Securities Certificate referred to
in paragraph (b) above specifies a means of satisfaction and discharge
other than the application of Section 503 with respect to the series of
Medium-Term Debt Securities to which such Medium-Term Debt Securities
Certificate relates, an Opinion of Counsel that the Medium-Term Debt
Securities have been duly authorized by resolutions of the Board of
Directors of the Company, subject to the establishment of certain terms of
the Medium-Term Debt Securities and Coupons, if any, of the series by
officers of the Company authorized by such resolutions to establish such
terms, that when the terms of the Medium-Term Debt Securities and Coupons,
if any, of the series have been established as provided in such
resolutions and in this Indenture and the Medium-Term Debt Securities and
Coupons, if any, of the series have been executed, authenticated and
delivered in accordance with the provisions of this Indenture, the
Medium-Term Debt Securities and Coupons, if any, of the series, assuming
they do not violate any applicable law then binding on the Company, will
constitute legal, valid and binding obligations of the Company entitled to
the benefits of this Indenture, equally and ratably with all other
Securities and Coupons, if any, of such series theretofore issued and then
outstanding hereunder, and that the amount of Securities then outstanding
under this Indenture, including the Medium-Term Debt Securities of the
series, will not exceed the amount at the time permitted by law or this
Indenture.
(d) If the Company shall not have delivered an Officers' Certificate
pursuant to the provisions of this paragraph (d) to the Trustee during the
immediately preceding 12-month period, an Officers' Certificate stating
that the Company is not in default under this Indenture, that the issuance
of the Medium-Term Debt Securities and Coupons, if any, of the series will
not result in any breach of any of the terms, conditions or provisions of,
or constitute a default under, the Company's certificate of incorporation
or By-laws or any indenture, mortgage, deed of trust or other agreement
<PAGE> 32
24
or instrument to which the Company is a party or by which it is bound, or
any order of any court or administrative agency entered in any proceeding
to which the Company is a party or by which it may be bound or to which
it may be subject, that all laws and requirements with respect to the
execution and delivery by the Company of the Medium-Term Debt Securities
and Coupons, if any, of the series have been complied with and that all
conditions precedent provided in this Indenture relating to the
authentication and delivery of the Medium-Term Debt Securities and
Coupons, if any, of the series have been complied with.
(e) Such other documents as the Trustee shall reasonably request.
SECTION 302. Form of Medium-Term Debt Securities. The Medium-Term Debt
Securities and Coupons, if any, of each series shall be in such forms as shall
be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Medium-Term Debt Securities of any series, the
Medium-Term Debt Securities and Coupons, if any, of such series shall be
substantially in the applicable form or forms set forth in Exhibit A hereto,
except with such additions, changes and deletions thereto as may be required to
reflect the different provisions thereof as shall be specified as provided in
Section 301.
ARTICLE FOUR
The Securities
SECTION 401. Form and Denomination. All Securities of any one series and
the Coupons appertaining to any Bearer Securities of such series shall be
substantially identical except, in the case of Registered Securities, as to
denomination and except as may otherwise be provided in or pursuant to the Board
Resolution referred to in Section 202 or Section 301, as the case may be, and
(subject to Section 402) set forth in the Officers' Certificate or Medium-Term
Debt Securities Certificate referred to in Section 202 or Section 301, as the
case may be, or in any indenture supplemental hereto.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 202 or Section 301, as the case
may be. In the absence of any such provisions with respect to the Securities of
any series, the Securities of such series denominated in Dollars shall be
issuable in denominations of $1,000 and in any integral multiple thereof, if
registered, and in denominations of $5,000 if bearer. Securities of each series
shall be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Company executing the same may
determine with the approval of the Trustee. Each Security shall bear the
appropriate legends, if any, as required by U.S. Federal tax law and
regulations.
SECTION 402. Execution, Delivery, Dating and Authentication. The
Securities shall be executed on behalf of the Company by a manual or facsimile
signature of its Chairman, its President, any of its Vice Presidents, its
Treasurer, any Assistant Treasurer, its Secretary or any Assistant Secretary,
under its corporate seal reproduced thereon. Any Coupons shall be executed on
behalf of the Company by the manual or facsimile signature of any such officer
of the Company. In case any of the above referenced officers of the Company who
shall have signed any of the Securities or Coupons shall cease to be such
officer before the Securities so signed shall have been authenticated and
delivered by the Trustee or disposed of by the Company, such Securities
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Securities and/or Coupons had not ceased to be such
officer; and any Securities or Coupons may be signed on behalf of the Company by
such persons as, at the actual date of the execution of such Security or Coupon,
shall be such officers of the Company, although at the date of the execution of
this Indenture any such person was not such officer.
<PAGE> 33
25
At any time and from time to time, the Company may deliver Securities of
any series, together with any Coupons appertaining thereto, executed by the
Company to the Trustee for authentication, together (except in the case of any
Medium-Term Debt Securities) with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order (or, in the case of Medium-Term Debt Securities of any series, upon
receipt of a Medium-Term Debt Securities Certificate and in accordance with the
terms thereof) shall authenticate and make available for delivery such
Securities; provided, however, that, unless otherwise specified in the Board
Resolution (or, in the case of any Bearer Securities that are Medium-Term Debt
Securities in the Medium-Term Debt Securities Certificate) with respect to an
Bearer Securities, in connection with its original issuance, no Bearer Security
(including any temporary Bearer Security issued pursuant to Section 403 which is
not in global form) shall be mailed or otherwise delivered to any location in
the United States; and provided further that, unless otherwise specified in the
Board Resolution (or, in the case of any Bearer Securities that are Medium-Term
Debt Securities, in the Medium-Term Debt Securities Certificate) with respect to
such Bearer Securities, such Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security (including any temporary Bearer Security issued pursuant to Section 403
which is not in global form) shall have furnished to the Company or any agent,
underwriter or selling group member a certificate substantially in the form set
forth in Exhibit B.1 to this Indenture, dated no earlier than 15 days prior to
the earlier of the date on which such Bearer Security is delivered and the date
on which any temporary Security first becomes exchangeable for such Bearer
Security in accordance with the terms of such temporary Security and this
Indenture. In connection with the original issuance of any Bearer Security and
unless otherwise specified in the Board Resolution (or, in the case of any
Bearer Securities that are Medium-Term Debt Securities, in the Medium-Term Debt
Securities Certificate) with respect to such Bearer Securities, a confirmation
substantially in the form set forth in Exhibit B.5 to this Indenture shall be
sent to each purchaser thereof. If any Security shall be represented by a
definitive global Bearer Security, then, for purposes of this Section and
Section 403, the notation of a beneficial owner's interest therein upon original
issuance of such Security or upon exchange of a portion of a temporary global
Security shall be deemed to be delivery in connection with its original issuance
of such beneficial owner's interest in such definitive global Bearer Security.
Except as permitted by Section 405, the Trustee shall not authenticate and make
available for delivery any Bearer Security unless all appurtenant Coupons for
interest then matured have been detached and canceled.
The Trustee shall not be required to authenticate Securities of any series
if the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee, or if the Trustee determines that such action may not lawfully be
taken.
Unless otherwise specified pursuant to Section 301(b)(2), each Registered
Security shall be dated the date of its authentication, and each Bearer Security
and any Bearer Security in global form shall be dated as of the date of original
issuance of the first Security of such series to be issued.
No Security or Coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
below executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been duly authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancelation as provided in Section 408
together with a written statement (which need not comply with Section 102 and
need
<PAGE> 34
26
not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
The Trustee's certificate of authentication shall be in substantially the
following form:
Dated:
This is one of the Securities of the series designated herein issued under
the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By
--------------------------------
Authorized Signatory
SECTION 403. Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order (or,
in the case of Medium-Term Debt Securities, receipt of the Medium-Term Debt
Securities Certificate with respect to such Medium-Term Debt Securities) the
Trustee shall authenticate and make available for delivery, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in registered form or,
if authorized, in bearer form with one or more Coupons or without Coupons, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as evidenced
conclusively by their execution of such Securities. Such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company maintained pursuant to Section 1102 in a Place of Payment for such
series for the purpose of exchanges of Securities of such series, without charge
to the Holder. Upon surrender for cancelation of any one or more temporary
Securities of any series (accompanied by any unmatured Coupons) the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a like aggregate principal amount of definitive Securities
of the same series and of like tenor or authorized denominations; provided,
however, that, unless otherwise specified as contemplated by Section 202 or
Section 301, as the case may be, no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; provided further that
a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 402.
If temporary Bearer Securities of any series are issued in global form,
such temporary global Bearer Securities shall, unless otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, be delivered to
the London office of a depository or common depository (the "Common
Depositary"), for the benefit of Euro-clear and CEDEL S.A., for credit to the
respective accounts of the beneficial owners of interests in such Securities (or
to such other accounts as they may direct).
<PAGE> 35
27
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and make available for
delivery, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, definitive global form or any combination thereof, as specified
as contemplated by Section 202 or Section 301, as the case may be, and, if any
combination thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that, unless otherwise specified as contemplated by
Section 202 or Section 301, as the case may be, upon such presentation by the
Common Depositary, such temporary global Security shall be accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euro-clear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit B.2 to this Indenture; provided further that definitive Bearer
Securities (including a definitive global Bearer Security) shall be delivered in
exchange for a portion of a temporary global Security only in compliance with
the requirements of Section 402.
Unless otherwise specified as contemplated by Section 202 or Section 301,
as the case may be, the interest of a beneficial owner of Securities of a series
in a temporary global Bearer Security shall be exchanged for definitive Bearer
Securities of the same series and of like tenor following the Exchange Date when
the beneficial owner instructs Euro-clear or CEDEL S.A., as the case may be, to
request such exchange on his behalf and delivers to Euro-clear or CEDEL S.A., as
the case may be, a certificate substantially in the form set forth in Exhibit
B.1 to this Indenture, dated no earlier than 15 days prior to the Exchange Date,
copies of which certificate shall be available from the offices of Euro-clear,
CEDEL S.A., the Trustee, any Authenticating Agent appointed for such series of
Securities and any Paying Agent appointed for such series of Securities. Unless
otherwise specified as contemplated by Section 202 or Section 301, as the case
may be, any such exchange shall be made free of charge to the beneficial owners
of such temporary global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the like
in the event that such Person does not take delivery of such definitive
Securities in person at the offices of Euro-clear or CEDEL S.A. The definitive
Bearer Securities to be delivered in exchange for any portion of a temporary
global Security shall be delivered only outside the United States.
Until exchanged in full as provided above, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 202 or Section 301, as the case may be, interest
payable on a temporary global Bearer Security on an Interest Payment Date for
Securities of such series occurring prior to the applicable Exchange Date shall
be payable to Euro-clear and CEDEL S.A. on such Interest Payment Date upon
delivery by Euro-clear and CEDEL S.A. to the Trustee of a certificate or
certificates substantially in the form set forth in Exhibit B.3 to this
Indenture, for credit without further interest on or after such Interest Payment
Date to the respective accounts of the Persons who are the beneficial owners of
such temporary global Security (or to such other accounts as they may direct) on
such Interest Payment Date and who have each delivered to Euro-clear or CEDEL
S.A., as the case may be, a certificate substantially in the form set forth in
Exhibit
<PAGE> 36
28
B.4 to this Indenture. Any interest so received by Euro-clear and CEDEL S.A. and
not paid as herein provided shall be returned to the Trustee immediately prior
to the expiration of two years after such Interest Payment Date in order to be
repaid to the Company in accordance with Section 1103.
SECTION 404. Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at an office or agency to be maintained by the
Company in accordance with Section 1102 a register (being the combined register
of the Security Registrar and all additional transfer agents designated pursuant
to Section 1102 for the purpose of registration of transfer of Securities and
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and the registration of transfers
of Registered Securities. The First National Bank of Chicago is hereby appointed
the initial Security Registrar. At all reasonable times each register maintained
by the Security Registrar and any additional transfer agents shall be open for
inspection by the Trustee.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained pursuant to Section
1102 for such purpose in a Place of Payment for such series, the Company shall
execute, and the Trustee shall authenticate and make available for delivery, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Securities which
the Holder making the exchange is entitled to receive. Unless otherwise
specified as contemplated by Section 202 or Section 301, as the case may be,
Bearer Securities may not be issued in exchange for Registered Securities.
At the option of the Holder and unless otherwise specified as contemplated
by Section 202 or Section 301, as the case may be, Bearer Securities of any
series may be exchanged for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured Coupons and all matured Coupons in default
appertaining thereto. If the Holder of a Bearer Security is unable to produce
any such unmatured Coupon or Coupons or matured Coupon or Coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face amount
of such missing Coupon or Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Company and the Trustee if there is furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to any Paying Agent any such missing Coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1102, interest represented by Coupons shall be payable only upon presentation
and surrender of those Coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be
<PAGE> 37
29
surrendered without the Coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and make available for delivery, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, any definitive
global Bearer Security shall be exchangeable only as provided in this paragraph.
If the beneficial owners of interests in a definitive global Bearer Security are
entitled to exchange such interests for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 202 or Section 301, as the case may be,
then without unnecessary delay but in any event not later than the earliest date
on which such interest may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in an aggregate principal amount equal to the
principal amount of such definitive global Bearer Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such definitive global Bearer Security shall be surrendered by the
Common Depositary or such other depositary or Common Depositary) as shall be
specified in the Company Order or Medium-Term Debt Securities Certificate, as
the case may be, with respect thereto to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee shall authenticate and make
available for delivery, in exchange for each portion of such definitive global
Bearer Security, an equal aggregate principal amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such definitive global Bearer Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 202 or Section
301, as the case may be, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 Business Days before any
selection of Securities of that series to be redeemed and ending on the relevant
Redemption Date; provided further that no Bearer Security delivered in exchange
for a portion of a definitive global Security shall be mailed or otherwise
delivered to any location in the United States. If a Registered Security is
issued in exchange for any portion of a definitive global Bearer Security after
the close of business at the office or agency where such exchange occurs on (i)
any Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such definitive global Bearer Security is payable in accordance
with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
<PAGE> 38
30
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar or
any transfer agent duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 403, 1006 or 1207 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening of
business 15 Business Days before any selection of Securities of that series to
be redeemed and ending at the close of business on (A) if Securities of the
series are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (B) if Securities of the series are issuable
as Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the day of mailing of the relevant
notice of redemption, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption.
SECTION 405. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security or Security with a mutilated Coupon appertaining to it is
surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding with Coupons corresponding to the Coupons, if
any, appertaining to the surrendered Security, provided that if such new
Security is a Bearer Security, such Security shall be delivered only outside the
United States.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security to which a destroyed,
lost or stolen Coupon appertains (upon surrender to the Trustee of such Security
with all appurtenant Coupons not destroyed, lost or stolen), a new Security of
the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen Coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or Coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security or Coupon, pay such Security or Coupon;
provided, however, that principal of (and premium, if any) and any interest on
Bearer Securities shall, except as otherwise provided in Section 1102, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 202
<PAGE> 39
31
or Section 301, as the case may be, any interest on Bearer Securities shall be
payable only upon presentation and surrender of the Coupons appertaining
thereto.
Upon the issuance of any new Security or Coupon under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security or Coupon of any series issued pursuant to this Section
in lieu of any mutilated, destroyed, lost or stolen Security or Coupon shall
constitute an original additional contractual obligation of the Company, whether
or not the mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities or
Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated. destroyed, lost or stolen Securities or Coupons.
SECTION 406. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided as contemplated by Section 202 or Section 301, as the case
may be, with respect to any series of Securities, interest on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest. At the option of the Company,
interest on the Registered Securities of any series that bears interest may be
paid by mailing a check to the address of any Holder as such address shall
appear in the Security Register.
Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of Securities of such series at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record
<PAGE> 40
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Date therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 404, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 407. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 404, 406 and 411 and unless otherwise specified as
contemplated by Section 202 or Section 301, as the case may be) interest on such
Security and for all other purposes whatsoever, whether or not such Security is
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any Coupons shall pass by delivery. The
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder of any Bearer Security and the Holder of any Coupon as the absolute owner
of such Security or Coupon for the purpose of receiving payment thereof or on
account thereof (unless otherwise specified as contemplated by Section 202 or
Section 301, as the case may be) and for all other purposes whatsoever, whether
or not such Security or Coupon be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 408. Cancelation. All Securities and Coupons surrendered for
payment, redemption, registration of transfer or exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee. All Securities and Coupons so delivered
shall be promptly canceled by the Trustee. All Bearer Securities and unmatured
Coupons held by the Trustee pending such cancelation shall be deemed to be
delivered for cancelation for all purposes of this Indenture and the Securities.
The Company may at any time deliver to the Trustee for cancelation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancelation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered to the Trustee shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities and Coupons held by the Trustee shall
be disposed of in a manner selected by the Trustee unless otherwise directed by
a Company Order; provided, however, that the Trustee may, but shall not be
required to, destroy such canceled Securities and Coupons.
SECTION 409. Computation of Interest. Except as otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, for Securities
of any
<PAGE> 41
33
series, interest on the Securities of each series shall be computed on the basis
of a 360-day year of twelve 30-day months.
SECTION 410. Currency and Manner of Payment in Respect of Securities. The
provisions of this Section shall apply to the Securities of any series unless
otherwise provided as contemplated by Section 202 or Section 301, as the case
may be.
(a) The following payment provisions shall apply to any Registered
Security of any series denominated in a Foreign Currency or any currency
unit, including without limitation ECU, except as provided in paragraph
(b) below:
(1) Except as provided in subparagraph (a)(2) or in paragraph
(e) below, payment of principal of and premium, if any, on such
Registered Security will be made at the Place of Payment by delivery
of a check in the currency or currency unit in which the Security is
denominated on the payment date against surrender of such Registered
Security, and any interest on any Registered Security will be paid
at the Place of Payment by mailing a check in the currency or
currency unit in which such interest is payable (which shall be the
same as that in which the Security is denominated unless otherwise
provided) to the Person entitled thereto at the address of such
Person appearing on the Security Register.
(2) Payment of the principal of, premium, if any, and
interest, if any, on such Security may also, subject to applicable
laws and regulations, be made at such other place or places as may
be designated by the Company by any appropriate method.
(b) With respect to any Registered Security of any series
denominated in any currency unit, including without limitation ECU, if the
following provisions (or any substitute therefor, or addition thereto, not
inconsistent with this Indenture) are established pursuant to Section 202
or Section 301, as the case may be, and if the Company has not, before the
delivery of the election referred to in clause (1) below, deposited funds
or securities in compliance with Section 501 or clause (a)(i) or (if
specified pursuant to Section 202 or Section 301, as the case may be)
clause (a)(ii) of Section 503, the following payment provisions shall
apply to any payment to be made prior to the giving of any notice to
Holders of any election to redeem pursuant to Section 1204, except as
otherwise provided in paragraphs (e) and (f) below:
(1) A Holder of Securities of a series shall have the option
to elect to receive payments of principal of, premium, if any, and
interest, if any, on such Securities in a currency or currency unit
(including Dollars), other than that in which the Security is
denominated, such election, as designated in the certificates for
such Securities (or as provided by Section 202 or Section 301, as
the case may be, or a supplemental indenture hereto with respect to
uncertificated securities), shall be made by delivering to the
Paying Agent a written election, to be in form and substance
satisfactory to the Paying Agent, not later than the close of
business in New York, New York, on the day 15 days prior to the
applicable payment date. Such election will remain in effect for
such Holder until changed by the Holder by written notice to the
Paying Agent (but any such written notice must be received by the
Paying Agent not later than the close of business on the day 15 days
prior to the next payment date to be effective for the payment to be
made on such payment date and no such change may be made with
respect to payments to be made on any Security of such series with
respect to which notice of redemption has been given by the Company
pursuant to Article Twelve). Any Holder of any such Security who
shall not have delivered any such election to the Paying Agent in
accordance with this paragraph (b) will be paid the amount due on
the applicable payment date in the relevant currency unit as
provided in paragraph (a)
<PAGE> 42
34
of this Section. Payment of principal of and premium, if any, shall
be made on the payment date therefor against surrender of such
Security. Payment of principal, premium, if any, and interest, if
any, shall be made at the Place of Payment by mailing at such
location a check, in the applicable currency or currency unit, to
the Holder entitled thereto at the address of such Holder appearing
on the Security Register.
(2) Payment of the principal of, premium, if any, and
interest, if any, on such Security may also, subject to applicable
laws and regulations, be made at such other place or places as may
be designated by the Company by any appropriate method.
(c) Payment of the principal of and premium, if any, and interest,
if any, on any Bearer Security will be made, except as provided in Section
403 with respect to temporary global Securities, unless otherwise
specified pursuant to Section 202 or Section 301, as the case may be,
and/or Section 1001(8), at such place or places outside the United States
as may be designated by the Company pursuant to any applicable laws or
regulations by any appropriate method in the currency or currencies or
currency unit or units in which the Security is payable (except as
provided in paragraph (e) below) on the payment date therefor against
surrender of the Bearer Security, in the case of payment of principal and
premium, if any, or the relevant Coupon, in the case of payment of
interest, if any, to a Paying Agent designated for such series pursuant to
Section 1102.
(d) Not later than 10 Business Days (with respect to any Place of
Payment) prior to each payment date, the Paying Agent shall deliver to the
Company a copy of its record of the respective aggregate amounts of
principal of, premium, if any, and interest, if any, on the Securities to
be made on such payment date, in the currency or currency unit in which
each of the Securities is payable, specifying the amounts so payable in
respect of Registered Securities and Bearer Securities and in respect of
the Registered Securities as to which the Holders of Securities
denominated in any currency unit shall have elected to be paid in another
currency or currency unit as provided in paragraph (b) above. If the
election referred to in paragraph (b) above has been provided for pursuant
to Section 202 or Section 301, as the case may be, and if at least one
Holder has made such election, then, not later than the fifth Business Day
(with respect to any Place of Payment) prior to the applicable payment
date the Company will deliver to the Trustee an Exchange Rate Officers'
Certificate in respect of the Dollar or Foreign Currency or currency unit
payments to be made on such payment date. The Dollar or Foreign Currency
or currency unit amount receivable by Holders of Registered Securities
denominated in a currency unit who have elected payment in another
currency or currency unit as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Official Currency
Unit Exchange Rate set forth in the applicable Exchange Rate Officers'
Certificate.
(e) If a Foreign Currency in which any Security is denominated or
payable ceases to be recognized both by the government of the country
which issued such currency and for the settlement of transactions by
public institutions of or within the international banking community, or
if ECU ceases to be used within the European Monetary System, or if any
other currency unit in which a Security is denominated or payable ceases
to be used for the purposes for which it was established, in each case as
determined in good faith by the Company, then with respect to each date
for the payment of principal of, premium, if any, and interest, if any, on
the applicable Security denominated or payable in such Foreign Currency,
ECU or such other currency unit occurring after the last date on which
such Foreign Currency, ECU or such other currency unit was so used (the
"Conversion Date"), the Dollar shall become the currency of payment for
use on each such payment date (but ECU or the Foreign Currency or the
currency unit previously the currency of payment shall, at the
<PAGE> 43
35
Company's election, resume being the currency of payment on the first such
payment date preceded by 15 Business Days during which the circumstances
which gave rise to the Dollar becoming such currency no longer prevail, in
each case as determined in good faith by the Company). The Dollar amount
to be paid by the Company to the Trustee and by the Trustee or any Paying
Agent to the Holder of such Security with respect to such payment date
shall be the Dollar Equivalent of the Foreign Currency or, in the case of
a currency unit, the Dollar Equivalent of the currency unit, as determined
by the Exchange Rate Agent (which shall be delivered in writing to the
Trustee not later than the fifth Business Day prior to the applicable
payment date) as of the Conversion Date or, if later, the date most
recently preceding the payment date in question on which such
determination is possible of performance, but not more than 15 days before
such payment date (such Conversion Date or date preceding a payment date
as aforesaid being called the "Valuation Date") in the manner provided in
paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in a currency
unit elects payment in a specified Foreign Currency or currency unit as
provided for by paragraph (b) and such Foreign Currency ceases to be used
both by the government of the country which issued such currency and for
the settlement of transactions by public institutions of or within the
international banking community, or if ECU ceases to be used within the
European Monetary System, or if another currency unit ceases to be used
for the purposes for which it is established, in each case as determined
in good faith by the Company, such Holder shall (subject to paragraph (e)
above) receivable payment in the currency unit in which the Security is
denominated. Each payment covered by an election pursuant to paragraph (b)
above shall be governed by the provisions of this paragraph (f) (but,
subject to any contravening valid election pursuant to paragraph (b)
above, the specified Foreign Currency or ECU or other currency unit shall,
at the Company's election, resume being the currency or currency unit, as
applicable, of payment with respect to Holders who have so elected, but
only with respect to payments on payment dates preceded by 15 Business
Days during which the circumstances which gave rise to such currency unit
becoming the currency unit of payment, no longer prevail, in each case as
determined in good faith by the Company).
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent as of each Valuation Date and shall
be obtained by converting the specified Foreign Currency into Dollars at
the Market Exchange Rate on the Valuation Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent as of each Valuation Date and shall be the sum
obtained by adding together the results obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate on the Valuation Date for such Component Currency.
(i) For purposes of this Section 410 the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including without limitation ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units (including decimals) which such Component Currency
represented in the relevant currency unit, on the Conversion Date
or, if ECU and such currency unit is being used for settlement of
transactions by public institutions of or within the European
Communities or was so used after the Conversion Date, the Valuation
<PAGE> 44
36
Date or the last date the currency unit was so used, whichever is
later. If after such date the official unit of any Component
Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or
multiplied in the same proportion. If after such date two or more
Component Currencies are consolidated into a single currency, the
respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single currency equal to the sum of
the respective Specified Amounts of such consolidated Component
Currencies expressed in such single currency, and such amount shall
thereafter be a Specified Amount and such single currency shall
thereafter be a Component Currency. If after such date any Component
Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by specified
amounts of such two or more currencies, the sum of which, at the
Market Exchange Rate of such two or more currencies on the date of
such replacement, shall be equal to the Specified Amount of such
former Component Currency and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component
Currencies.
"Market Exchange Rate" shall mean, as of any date, for any
currency or currency unit the noon Dollar buying rate for that
currency or currency unit, as the case may be, for cable transfers
quoted in New York City on such date as certified for customs
purposes by the Federal Reserve Bank of New York or such other rate
as may be established pursuant to Section 202 or Section 301, as the
case may be. If such rates are not available for any reason with
respect to one or more currencies or currency units for which an
Exchange Rate is required, the Exchange Rate Agent shall use, in its
sole discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York as of the most recent available
date, or quotations from one or more major banks in New York City or
in the country of issue of the currency or currency unit in
question, or such other quotations as the Exchange Rate Agent shall
deem appropriate. Unless otherwise specified by the Exchange Rate
Agent, if there is more than one market for dealing in any currency
or currency unit by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such currency or
currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would, as
determined in its sole discretion and without liability on the part
of the Exchange Rate Agent, purchase such currency or currency unit
in order to make payments in respect of such securities.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the Currency Unit and the Market Exchange Rate shall
be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon
the Company and all Holders of the Securities and Coupons
denominated or payable in the relevant currency or currency units.
In the event that a Foreign Currency ceases to be used both by the
government of the country which issued such currency and for the
settlement of transactions by public institutions of or within the
international banking community, the Company, after learning
thereof, will immediately give notice thereof to the Trustee (and
the Trustee will promptly thereafter give notice in the manner
provided in Section 106 to the Holders) specifying the Conversion
Date. In the event the ECU ceases to be used within the European
Monetary System, or any other currency unit in which Securities or
Coupons are denominated or payable, ceases to be used for the
purposes for which it was established, the Company, after learning
thereof, will immediately give notice thereof to the Trustee (and
the Trustee will promptly thereafter give notice in the manner
provided in Section 106 to the Holders) specifying the Conversion
Date. Any actions taken pursuant to the parentheticals at the end of
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the first sentence of Section 410(e) and at the end of Section
410(f) shall be promptly set forth in like notices from the Company
to the Trustee and then from the Trustee to the Holders (which
notice may be mailed with payment to the Holders).
Subject to the provisions of Sections 701 and 703, the Trustee
shall be fully justified and protected in relying and acting upon
information received by it from the Company and the Exchange Rate
Agent, and shall not otherwise have any duty or obligation to
determine such information independently.
SECTION 411. Securities in Global Form. If Securities of a series are
issuable in global form, as specified as contemplated by Section 202 or Section
301, as the case may be, then, notwithstanding clause (a)(8) of Section 202 or
clause (b)(9) of Section 301, as the case may be, and the provisions of Section
401, such Security shall represent such of the Outstanding Securities of such
series as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced or increased to reflect exchanges. Any endorsement
of a Security in global form to reflect the amount, or any increase or decrease
in the amount, of Outstanding Securities represented thereby shall be made by
the Trustee in such manner and upon instructions given by such Person or Persons
as shall be specified therein or in the Company Order (or, in the case of
Medium-Term Debt Securities, the Medium-Term Debt Securities Certificate) to be
delivered to the Trustee pursuant to Section 402 or Section 403. Subject to the
provisions of Section 402 and, if applicable, Section 403, the Trustee shall
deliver and redeliver any Security in definitive global bearer form in the
manner and upon written instructions given by the Person or Persons specified
therein or in the applicable Company Order (or, in the case of Medium-Term Debt
Securities, the Medium-Term Debt Securities Certificate). If a Company Order
(or, in the case of Medium-Term Debt Securities, Medium-Term Debt Securities
Certificate) pursuant to Section 402 or 403 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of the fifth paragraph of Section 402
shall apply to any Security represented by a Security in global form if such
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement contemplated
by the last sentence of the fifth paragraph of Section 402.
Notwithstanding the provisions of Section 406, unless otherwise specified
as contemplated by Section 202 or Section 301, as the case may be, payment of
principal of and any premium and any interest on any Security in definitive
global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 407 and except as provided in
the preceding paragraph, the Company, and any agent of the Company may, and the
Trustee and any agent of the Trustee, at the direction of the Company, may treat
a Person as the Holder of such principal amount of Outstanding Securities
represented by a definitive global Security as shall be specified in a written
statement of the Holder of such definitive global Security or, in the case of a
definitive global Security in bearer form, of Euro-clear or CEDEL S.A. which is
produced to the Trustee by such Person; provided, however, that none of the
Company, the Trustee, the Security Registrar or any Paying Agent shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Security in
global form or for
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maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
ARTICLE FIVE
Satisfaction and Discharge
SECTION 501. Satisfaction and Discharge of Indenture in Respect of Any
Series of Securities. This Indenture shall upon Company Request cease to be of
further effect with respect to a series of Securities (except as to any
surviving rights of (as applicable) registration of transfer or exchange of
Securities and Coupons, if any, of such series herein expressly provided for),
and the Trustee, at the request and expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to such series, when
(1) either
(A) all Securities and Coupons, if any, of such series
theretofore authenticated and delivered (other than (i) Securities
and Coupons of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 405 and
(ii) Securities and Coupons of such series for whose payment money
has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1103) have been
delivered to the Trustee for cancelation; or
(B) all such Securities and Coupons of such series not
theretofore delivered to the Trustee for cancelation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount in the currency or currency unit
in which such Securities and Coupons of such series are payable
sufficient to pay and discharge the entire indebtedness on such
Securities and Coupons of such series not theretofore delivered to
the Trustee for cancelation, for principal (and premium, if any) and
interest, if any, to the date of such deposit (in the case of
Securities and Coupons of such series which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to such series of Securities; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of the Securities of the series under this Indenture have been complied
with.
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Notwithstanding the satisfaction and discharge of this Indenture with
respect to a series, the obligations of the Company to the Trustee under Section
707, the obligations of the Trustee to any Authenticating Agent under Section
715 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 502 and the last paragraph of Section 1103 shall survive.
SECTION 502. Application of Trust Money. Subject to the provisions of the
last paragraph of Section 1103, all money deposited with the Trustee pursuant to
Sections 501 and 503 (and all money received as payment in connection with U.S.
Government Obligations and Foreign Government Securities deposited pursuant to
Section 503) shall be held in trust and applied by it, in accordance with the
provisions of the Securities and Coupons, if any, and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest, if any,
for whose payment such money has been deposited with the Trustee.
SECTION 503. Satisfaction, Discharge and Defeasance of Securities of Any
Series. (a) If this Section is specified, as contemplated by Section 202 or
Section 301, as the case may be, to be applicable to Securities and Coupons, if
any, of any series, at the Company's option, either
(i) the Company will be deemed to have been Discharged (as defined
below) from its obligations with respect to Securities and Coupons, if
any, of such series or
(ii) the Company will cease to be under any obligation with respect
to such series to comply with any term, provision or condition set forth
in (x) Sections 901, 902, 1104 and 1105 or (y) the instrument or
instruments setting forth the terms, provisions or conditions of such
series pursuant to Section 202 or Section 301, as the case may be
(provided, in the case of this subclause (y), that such instrument or
instruments specify which terms, provisions or conditions, if any, are
subject to this clause (a)(ii) and that no such instrument may specify
that the Company may cease to comply with any obligations as to which it
may not be Discharged pursuant to the definition of "Discharged").
(b) A Discharge pursuant to clause (a)(i) above shall be effective with
respect to the Securities and Coupons, if any, of such series on the 91st day
after the applicable conditions set forth below in (i) and either (ii) or (iii)
have been satisfied, and the Company's release from its obligations to comply
with certain obligations with respect to such series pursuant to clause (a)(ii)
above shall be effective with respect to the Securities and Coupons, if any, of
such series on the first day after the applicable conditions set forth below in
(i) and either (ii) or (iii) have been satisfied:
(i) the Company has:
(A) paid or caused to be paid all other sums payable with
respect to the Outstanding Securities and Coupons, if any, of such
series (in addition to any required under clause (b)(ii) or
(b)(iii)); and
(B) delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of
the entire indebtedness on all Outstanding Securities and Coupons,
if any, of any such series have been complied with;
(ii) (A) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as a trust fund specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the
Securities and Coupons, if any, of such
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series (1) money in an amount (in such currency, currencies or currency
unit or units in which any Outstanding Securities and Coupons, if any, of
such series are payable) or (2) in the case of Securities and Coupons, if
any, denominated in Dollars, U.S. Government Obligations (as defined
below) or, in the case of Securities and Coupons, if any, denominated in a
Foreign Currency, Foreign Government Securities (as defined below), which
through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment of principal (including any premium) and
interest, if any, under the Securities and Coupons, if any, of such
series, money in an amount or (3) a combination of (1) and (2), which in
any case of clauses (1), (2) and (3) is sufficient (in the opinion with
respect to (2) and (3) of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee) to pay and discharge each installment of principal of
(including premium, if any, on), and interest, if any, on, the Outstanding
Securities and Coupons, if any, of such series on the dates such
installments of interest or principal are due, in the currency, currencies
or currency unit or units, in which such Securities and Coupons, if any,
are payable;
(B)(1) no Event of Default or event (including such deposit) which
with notice or lapse of time would become an Event of Default shall have
occurred and be continuing on the date of such deposit, (2) no Event of
Default as defined in clause (5) or (6) of Section 601, or event which
with notice or lapse of time or both would become an Event of Default
under either such clause, shall have occurred within 90 days after the
date of such deposit, and (3) such deposit and the related intended
consequence under clause (a)(i) or (a)(ii) above will not result in any
default or event of default under any material indenture, agreement or
other instrument binding upon the Company or any Subsidiary or any of
their properties;
(C) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities and Coupons, if any,
of such series will not recognize income, gain or loss for Federal income
tax purposes as a result of the Company's exercise of its option under
this Section 503 and will be subject to Federal income tax in the same
amount, in the same manner and at the same times as would have been the
case if such option had not been exercised; and
(D) if the Securities of such series are then listed on the New York
Stock Exchange, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that such Securities will not be delisted as the
result of the Company's exercise of its option under this Section 503;
(iii) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section 202
or Section 301, as the case may be, to be applicable to the Securities and
Coupons, if any, of such series.
(c) Any deposits with the Trustee referred to in clause (b)(ii)(A) above
will be made under the terms of an escrow trust agreement in form and substance
satisfactory to the Trustee. If any Outstanding Securities and Coupons, if any,
of such series are to be redeemed prior to their Stated Maturity, whether
pursuant to any mandatory redemption provisions or in accordance with any
mandatory sinking fund requirement, the applicable escrow trust agreement will
provide therefor and the Company will make arrangements for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the Company.
SECTION 504. Reinstatement. If the Trustee is unable to apply any money,
U.S. Government Obligations or Foreign Government Securities in accordance with
Section 501 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such
<PAGE> 49
41
application, the Company's obligations under this Indenture and the
Securities and Coupons, if any, of such series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 501 until
such time as the Trustee is permitted to apply all such money, U.S.
Government Obligations or Foreign Government Securities in accordance with
Section 501; provided, however, that if the Company has made any payment
of interest on or principal of (and premium, if any) on any Securities and
Coupons, if any, of such series because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders
of such series of Securities and Coupons, if any, to receive such payment
from the money, U.S. Government Obligations or Foreign Government
Securities held by the Trustee.
SECTION 505. Definitions. The following terms, as used in this Article,
shall have the following meanings:
"Discharged" means that the Company will be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under,
the Securities and Coupons, if any, of the series as to which this Section
is specified as applicable as aforesaid and to have satisfied all the
obligations under this Indenture relating to the Securities and Coupons,
if any, of such series (and the Trustee, at the request and expense of the
Company, will execute proper instruments acknowledging the same), except
(A) the rights of Holders thereof to receive, from the trust fund
described in Section 503(b)(ii)(A), payment of the principal of (and
premium, if any) and the interest, if any, on such Securities and Coupons,
if any, when such payments are due, (B) the Company's obligations with
respect to such Securities and Coupons, if any, under Sections 404 and 405
(insofar as applicable to Securities of such series), 502, 1102 and 1103
(last paragraph only) and the Company's obligations to the Trustee under
Section 707, (C) the rights of Holders of Securities of any series with
respect to the currency or currency units in which they are to receive
payments of principal, premium, if any, and interest, if any, and (D) the
rights, powers, trusts, duties and immunities of the Trustee hereunder,
will survive such discharge. The Company will reimburse the trust fund for
any loss suffered by it as a result of any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or
Foreign Government Securities, as the case may be, or any principal or
interest paid on such obligations, and, subject to the provisions of
Section 707, will indemnify the Trustee against any claims made against
the Trustee in connection with any such loss.
"Foreign Government Securities" means, with respect to Securities
and Coupons, if any, of any series that are denominated in a Foreign
Currency, securities that are (i) direct obligations of the government
that issued or caused to be issued such currency for the payment of which
obligations its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of such government the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by such
government, which, in either case under clause (i) or (ii), are not
callable or redeemable at the option of the issuer thereof.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person
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 of the
United States of America, which, in either case under clause (i) or (ii),
are not callable or redeemable at the option of the issuer thereof, and
will also include a depository receipt issued by a bank or trust company
as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a
<PAGE> 50
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depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
ARTICLE SIX
Remedies
SECTION 601. Events of Default. "Event of Default" with respect to any
series of Securities means each one of the events specified below in this
Section 601, unless it is either inapplicable to a particular series or is
specifically deleted or modified in or pursuant to the supplemental indenture,
Board Resolution or Medium-Term Debt Securities Certificate establishing such
series of Securities:
(1) default in the payment of any installment of interest upon any
of the Securities of such series, as and when the same shall become due
and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or premium, if any,
on any of the Securities of such series, as and when the same shall become
due and payable (subject to clause (3) below) either at maturity, upon
redemption, by declaration or otherwise; or
(3) default in the making of any payment for a sinking, purchase or
analogous fund provided for in respect of such series of Securities, as
and when the same shall become due and payable, and continuance of such
default for a period of 30 days; or
(4) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company in
respect of the Securities of such series, or in this Indenture contained
with respect to such series, for a period of 90 days after the date on
which written notice of such failure requiring the Company to remedy the
same and stating that such notice is a `Notice of Default' hereunder,
shall have been given, by registered or certified mail, to the Company by
the Trustee, or to the Company and the Trustee by the holders of at least
25% in aggregate principal amount of the Securities of such series at the
time Outstanding; or
(5) entry of a decree or order for relief in respect of the Company
by a court having jurisdiction in the premises in an involuntary case
under any applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property, or
ordering the winding-up or liquidation of its affairs and such decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(6) commencement by the Company of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or consent by the Company to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of the Company or for
any substantial part of its property, or any general assignment by the
Company for the benefit of creditors, or failure by the Company generally
to pay its debts as they become due, or the taking by the Company of any
corporate action in furtherance of any of the foregoing; or
(7) any other Event of Default provided with respect to Securities
of that series.
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SECTION 602. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in each and every such case, either
the Trustee or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of that series or, in the case of an Event of Default
specified in Clause (5) or (6) of Section 601, of all series (voting as a class)
with respect to which such Event of Default has occurred and is continuing, may
declare the principal amount (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all of the Securities of that series,
together with accrued interest thereon, if any, to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount), together with accrued interest thereon, if any, shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) in Dollars all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 613.
No such rescission shall affect any subsequent default or impair any right
consequent thereon,
SECTION 603. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default shall be made in the payment of any installment of
interest on any Security or Coupon as and when the same shall become due
and payable, and such default shall have continued for the period of grace
provided for with respect to such Security or Coupon, as the case may be,
(2) default shall be made in the payment of the principal of or
premium, if any, on any Security as and when the same shall have become
due and payable (subject to clause (3) below), whether at maturity of the
Security or upon redemption or by
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declaration or otherwise, and such default shall have continued for any
period of grace provided for with respect to such Security, or
(3) default shall be made in the payment for any sinking, purchase
or analogous fund provided for in respect of any Security as and when the
same shall become due and payable, and such default shall have continued
for any period of grace provided for with respect to such Security,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and Coupons, if any, the whole amount then due and
payable on such Securities and Coupons, if any, for principal (and premium, if
any) and interest, if any, 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 installments of interest, if any, at the rate or rates
prescribed therefor in such Securities and Coupons, if any, 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 Securities and Coupons, if
any, 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 Securities and Coupons, if any, wherever situated.
If an Event of Default with respect to Securities and Coupons, if any, of
any series occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of Securities
and/or Coupons of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 604. 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 any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest, if any, owing and unpaid in respect of the
Securities 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
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of
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such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 707.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
and/or Coupons 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 605. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities and
Coupons, if any, may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons, if any, or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and Coupons, if any, in respect of which such judgment has been
recovered.
SECTION 606. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and Coupons, if any, and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: to the payment of all amounts due the Trustee under Section
707;
SECOND: to the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities and
Coupons, if any, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities and/or
Coupons for principal (and premium, if any) and interest, if any,
respectively; and
THIRD: the balance, if any, to the Person or Persons entitled
thereto.
SECTION 607. Limitation on Suits. No Holder of Securities of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) an Event of Default with respect to Securities of such series
shall have occurred and be continuing and such Holder has previously given
written notice to the Trustee of such continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series or, in the case of an Event of
Default specified in Clause (5) or (6) of Section 601, of all series
(voting as a class) with respect to which such Event of Default has
occurred and is continuing, shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series
or, in the case of an Event of Default specified in Clause (5) or (6) of
Section 601, of all series (voting as a class) with respect to which such
Event of Default has occurred and is continuing;
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 (including without limitation the provisions of Section 612)
to affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such Holders.
SECTION 608. Unconditional Right of Holders To Receive Principal, Premium
and Interest. Notwithstanding any other provision in this Indenture, the Holder
of any Security or any Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 406) interest, if any, on such Security or Coupon on the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 609. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to and determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 610. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities and/or Coupons, if any, in the last paragraph of Section 405,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 611. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Securities and/or Coupons to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Subject to the provisions of Section 607, every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 612. Control by Holders. The Holders of not less than a majority
in principal amount of the Outstanding Securities of any series shall have the
right to direct
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the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series; provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture.
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 701, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Trust Officer or Officers of the Trustee,
determine that the action so directed would involve the Trustee in
personal liability.
SECTION 613. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Ten cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist with respect to
such series, and any Event of Default with respect to such series arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 614. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of a Security and/or Coupon by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest, if any, on any
Security or the payment of interest on any Coupon on or after the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 615. Waiver of Stay or Extension Laws. The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein
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48
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SEVEN
The Trustee
SECTION 701. Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Trust Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series, given pursuant to Section 612,
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 702. Notice of Defaults. Within 90 days after the occurrence of
any default hereunder with respect to the Securities of any series, the Trustee
shall transmit to the
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Holders of Securities of such series notice as provided in Section 106 of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any, on) or interest on any Security
of such series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Trust Officers of the Trustee in
good faith determines that the withholding of such notice is in the interest of
the Holders of Securities of such series; provided further that in the case of
any default of the character specified in Section 601(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence of such default. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of
such series.
SECTION 703. Certain Rights of Trustee. Subject to the provisions of
Section 701:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors 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 be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document;
(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
counsel, and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or counsel appointed with due care
(and, in the case of any agent, with the prior written consent of the
Company; provided, however, that the Company's prior written consent shall
not be required in connection with the appointment of an agent as a result
of or in connection with a default or an Event of Default) by it
hereunder; and
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(h) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
SECTION 704. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 705. May Hold Securities. The Trustee, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities or warrants to
purchase Securities and, subject to Sections 708 and 713, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar or such other agent.
SECTION 706. Money Held in Trust. Except as provided in Section 114, money
held by the Trustee or any Paying Agent in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee or
any Paying Agent shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
SECTION 707. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time in Dollars such
compensation as shall be agreed to 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);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee in Dollars upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee in Dollars for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense, including
taxes (other than taxes based upon, or measured or determined by, the
income of the Trustee) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of, premium, if any, or interest, if any,
on particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 601(5) and Section 601(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state
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bankruptcy, insolvency or other similar law. The provisions of this Section
shall survive the termination of this Indenture and the resignation or removal
of the Trustee.
SECTION 708. Disqualification; Conflicting Interests. If the Trustee has
or shall acquire any conflicting interest, as defined in Section 310(b) of the
Trust Indenture Act, with respect to the Securities of any series, it shall,
within 90 days after ascertaining that it has such conflicting interest, either
eliminate such conflicting interest or resign with respect to the Securities of
that series in the manner and with the effect provided by, and subject to the
provisions of, Section 310(b) of the Trust Indenture Act and this Indenture.
In the event that the Trustee shall fail to comply with the provisions of
the preceding sentence with respect to the Securities of any series, the Trustee
shall, within 10 days after the expiration of such 90-day period, transmit, in
the manner and to the extent provided in Section 106, to all Holders of
Securities of that series notice of such failure.
Nothing herein shall prevent the Trustee from filing with the Commission
the application referred to in the penultimate paragraph of Section 310(b) of
the Trust Indenture Act.
To the extent permitted by the Trust Indenture Act, the Trustee shall not
be deemed to have a conflicting interest with respect to the Securities of any
series by virtue of being Trustee with respect to the Securities of any
particular series of Securities other than that series.
SECTION 709. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee for each series of Securities hereunder which shall be either
(1) a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, which is
authorized under such laws to exercise corporate trust powers and is subject to
supervision or examination by Federal or State authority and having a corporate
trust office located in The City of New York or (2) a corporation or other
Person organized and doing business under the laws of a foreign government that
is permitted to act as Trustee pursuant to a rule, regulation or order of the
Commission, which is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent to
supervision or examination applicable to United States institutional trustees;
in either case having a combined capital and surplus of at least $50,000,000. If
such corporation or Person publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation or Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
Neither the Company nor any Person directly or indirectly controlling,
controlled by, or under common control with the Company shall serve as trustee
for the Securities of any series issued hereunder. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 710. 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 711.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 711 shall
not have been delivered to the resigning Trustee within 30 days after the giving
of such notice of resignation, the resigning Trustee
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may petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 708 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security of a series as to which the Trustee has a conflicting
interest for at least six months, or
(2) the Trustee for a series shall cease to be eligible under
Section 709 and shall fail to resign after written request therefor by the
Company or by any Holder of Securities of such series, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 614, any
Holder who has been a bona fide Holder of a Security for at least six months
(and, in the case of Clause (1) above, who is a holder of a Security of a series
as to which the Trustee has a conflicting interest) may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of the Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
of or all such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and such successor Trustee
or Trustees shall comply with the applicable requirements of Section 711. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 711, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 711, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by giving
notice of such event to all Holders of Securities of such series as provided by
Section 106. Each notice shall include
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the name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
SECTION 711. Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) 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 cotrustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(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 712. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be otherwise qualified and eligible under
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this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 713. Preferential Collection of Claims Against Company. (a)
Subject to Subsection (b) of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the Company
within three months prior to a default, as defined in Subsection (c) of this
Section, or subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the Holders of the Securities and
Coupons, if any, and the holders of other indenture securities, as defined in
Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three-month period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default;
and
(2) all property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Company) who is
liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third Person, and (iii) distributions
made in cash, securities or other property in respect of claims
filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy
Act or applicable State law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held
prior to the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received
as security therefor simultaneously with the creation thereof, and
if the Trustee shall sustain the burden of proving that at the time
such property was so received the Trustee had no reasonable cause to
believe that a default, as defined in Subsection (c) of this
Section, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for
such claim as provided in paragraph (B) or (C), as the case may be,
to the extent of the fair value of such property.
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For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held
in such special account and the proceeds thereof shall be apportioned among the
Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership for
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee, the Holders and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and the proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee and the Holders and the holders of
other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such
three-month period shall be subject to the provisions of this Subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this Subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such three-month period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
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(b) There shall be excluded from the operation of Subsection (a) of this
Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien of
this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders at the time and in
the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the
Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the classification of self-liquidating paper, as defined in Subsection (c)
of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of
the principal of (or premium, if any, on) or interest on any of the
Securities or upon the other indenture securities when and as such
principal or interest becomes due and payable;
(2) the term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security; provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation;
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(5) the term "Company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
SECTION 714. Judgment Currency. If, for the purpose of obtaining a
judgment in any court with respect to any obligation of the Company hereunder or
under any Security or Coupon, it shall become necessary to convert into any
other currency or currency unit any amount in the currency or currency unit due
hereunder or under such Security or Coupon, then such conversion shall be made
at the Conversion Rate (as defined below) as in effect on the date the Company
shall make payment to any Person in satisfaction of such judgment. If pursuant
to any such judgment, conversion shall be made on a date other than the date
payment is made and there shall occur a change between such Conversion Rate and
the Conversion Rate as in effect on the date of payment or distribution, the
Company agrees to pay such additional amounts (if any) as may be necessary to
ensure that the amount paid is the amount in such other currency or currency
unit which, when converted at the Conversion Rate as in effect on the date of
payment or distribution, is the amount then due hereunder or under such Security
or Coupon. Any amount due from the Company under this Section 714 shall be due
as a separate debt and is not to be affected by or merged into any judgment
being obtained for any other sums due hereunder or in respect of any Security or
Coupon so that in any event the Company's obligations hereunder or under such
Security or Coupon will be effectively maintained as obligations in such
currency or currency unit. In no event, however, shall the Company be required
to pay more in the currency or currency unit stated to be due hereunder or under
such Security or Coupon.
For purposes of this Section 714, "Conversion Rate" shall mean, as of any
date, for any currency or currency unit into which an amount due hereunder or
under any Security or Coupon is to be converted, the noon buying rate in the
other currency or currency unit for that currency or currency unit for cable
transfers quoted in New York City on such date as certified for customs purposes
by the Federal Reserve Bank of New York. If such rates are not available for any
reason with respect to one or more currencies or currency units for which a
Conversion Rate is required, the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City or in the country of issue of the
currency in question, or such other quotations as the Exchange Rate Agent shall
deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if
there is more than one market for dealing in a currency or currency unit by
reason of foreign exchange regulations or otherwise, the market to be used in
respect of such currency or currency unit shall be that upon which a nonresident
issuer of securities designated in such currency or currency unit would, as
determined in its sole discretion and without liability on the part of the
Exchange Rate Agent, purchase such currency or currency unit in order to make
payments in respect of such Securities. If there does not exist a quoted
exchange rate in any currency or currency unit (the "First Currency") for
another currency unit (the "Second Currency"), then the Conversion Rate for the
Second Currency shall be equal to equivalent amount in the First Currency
obtained by converting the Specified Amount of each Component Currency of the
Second Currency into the First Currency at the Conversion Rate (determined as
provided above) for each such Component Currency on such date (or, if the First
Currency is a currency unit for which there is no quoted exchange rate in any
Component Currency, by converting the Specified Amount of each Component
Currency of the Second Currency into the Specified Amount of each Component
Currency of the First Currency at the Conversion Rate (determined as provided
above) for each such Component Currency on such date).
SECTION 715. Appointment of Authenticating Agent. The Company may appoint
an Authenticating Agent or Agents with respect to one or more series of
Securities which
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shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue or upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 405, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Trustee and shall at all times be a corporation having a combined capital and
surplus of not less than the equivalent of $50,000,000 and subject to
supervision or examination by Federal, state or District of Columbia authority
or the equivalent foreign authority, in the case of an Authenticating Agent who
is not organized and doing business under the laws of the United States of
America, any state thereof or the District of Columbia. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent, shall continue to be an
Authenticating Agent; provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Company may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Trustee. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Company may appoint a successor Authenticating
Agent which shall be acceptable to the Trustee and shall mail, or cause to be
mailed, written notice of such appointment by first-class mail, postage prepaid,
to all Holders of Registered Securities, if any, of the series with respect to
which such Authenticating Agent will serve, as their names and addresses appear
in the Security Register. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
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If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated herein issued under
the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
By
-------------------------------------
As Authenticating Agent
By
-------------------------------------
Authorized [Officer] [Signatory]
If all the Securities of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment or other place
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Company shall appoint in accordance with this Section an
Authenticating Agent (which may be an Affiliate of the Company if eligible to be
appointed as an Authenticating Agent hereunder) having an office in such Place
of Payment or other place designated by the Company with respect to such series
of Securities.
ARTICLE EIGHT
Holders' Lists and Reports by Trustee and Company
SECTION 801. Company To Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than January 15 and July 15 in each
year, a list in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of each series of Registered Securities
as of the preceding January 1 or July 1, as the case may be, and such
information concerning the Holders of Bearer Securities which is known to
the Company or any Paying Agent other than the Company; provided, however,
that the Company and such Paying Agents shall have no obligation to
investigate any matter relating to any Holder of a Bearer Security or a
Coupon; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content, such list to be dated as of a date not
more than 15 days prior to the time such list is furnished, and such
information concerning the Holders of Bearer Securities which is known to
the Company or any such Paying Agent; provided, however, that the Company
and such Paying Agents shall have no obligation to investigate any matter
relating to any Holder of a Bearer Security or a Coupon;
notwithstanding the foregoing subsections (a) and (b), at such times as the
Trustee is the Security Registrar and Paying Agent with respect to a particular
series of Securities, no such list shall be required to be furnished in respect
of such series.
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SECTION 802. Preservation of Information; Communications to Holders. (a)
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders of each series contained in the most recent
list furnished to the Trustee as provided in Section 801 and the names and
addresses of Holders of each series received by the Trustee in any capacity as
Security Registrar or Paying Agent. The Trustee may destroy any list furnished
to it as provided in Section 801 upon receipt of a new list so furnished.
(b) If three or more Holders of Securities of any series (herein referred
to as "applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security of such series
for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities of such series with respect to their rights under this
Indenture or under such Securities and is accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, then the
Trustee shall, within five business days after the receipt of such application,
at its election, either
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 802(a), or
(ii) inform such applicants as to the approximate number of Holders
of Securities of such series whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with
Section 802(a), and as to the approximate cost of mailing to such Holders
the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities of such series whose name and address appear
in the information preserved at the time by the Trustee in accordance with
Section 802(a) a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interest of the Holders of such series or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 802(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
802(b).
SECTION 803. Reports by Trustee. (a) Within 60 days after September 15 of
each year commencing with the September 15 occurring after the initial issuance
of Securities hereunder, the Trustee shall transmit by mail to the Holders of
Securities, as provided in Subsection (d) of this Section, a brief report dated
as of such September 15 with respect to
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any of the following events which may have occurred during the twelve months
preceding the date of such report (but if no such event has occurred within such
period, no report need be transmitted):
(1) any change to its eligibility under Section 709 and its
qualifications under Section 708;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1% of the principal amount of the
Securities Outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 713(b)(2), (3),
(4) or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 702.
(b) The Trustee shall transmit by mail to all Holders, as provided in
Subsection (d) of this Section, a brief report with respect to the character and
amount of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to Subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on property or funds held or collected
by it as Trustee and which it has not previously reported pursuant to this
Subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of the Securities Outstanding at such time, such
report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each United States stock exchange upon
which any Securities are listed, with the Commission and with the Company.
(d) Reports pursuant to Section 803(a) and 803(b) shall be transmitted by
mail (i) to all Holders, as their names and addresses appear in the Security
Register, (ii) to all Holders as have, within two years preceding such
transmission, filed their names and
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addresses with the Trustee for such purpose, and (iii) except in the case of
reports pursuant to Section 803(b), to all Holders whose names and addresses
have been furnished or received by the Trustee pursuant to Sections 801 and 802.
SECTION 804. Reports by Company. The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to
file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time in such rules and regulations;
(3) transmit by mail to all Holders of Securities, in the manner and
to the extent provided in Section 803(d) with respect to reports to be
transmitted pursuant to Section 803(a), within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraph (1) of
(2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission; and
(4) promptly notify the Trustee when any Securities are listed on
any stock exchange.
ARTICLE NINE
Consolidation, Merger, Conveyance or Transfer
SECTION 901. Company May Consolidate, etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other corporation or convey
or transfer all or substantially all its properties and assets as an entirety to
any Person, unless:
(1) the successor Person formed by such consolidation or into which
the company is merged or the Person which acquires by conveyance or
transfer all or substantially all the properties and assets of the Company
as an entirety shall be a corporation, partnership, limited liability
company, trust or other entity organized and existing under the laws of
the United States of America or any state or the District of Columbia, and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, and premium, if any, and interest,
if any, on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed; and
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(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing.
SECTION 902. Successor Corporation Substituted. Upon any consolidation or
merger, or any conveyance or transfer of all or substantially all the properties
and assets of the Company as an entirety in accordance with Section 901, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein; and in the event of any such conveyance or
transfer, the Company (which term shall for this purpose mean the Person named
as the "Company" in the first paragraph of this instrument or any successor
corporation which shall have theretofore become such in the manner prescribed in
Section 901) shall be discharged from all liability under this Indenture and in
respect of the Securities and may be dissolved and liquidated.
ARTICLE TEN
Supplemental Indentures
SECTION 1001. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, the Company, when authorized by or pursuant to a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(3) to add any additional Events of Default with respect to all or
any series of the Securities (and, if such Event of Default is applicable
to less than all series of Securities, specifying the series to which such
Event of Default is applicable);
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with
or without interest coupons; to change or eliminate any restrictions on
the payment of principal of or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations; provided
that any such addition or change shall not adversely affect the interests
of the Holders of Securities of any series or any related Coupons in any
material respect;
(5) 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 Security Outstanding of any series created prior to the
execution of such supplemental indenture which is adversely affected by
such change in or elimination of such provision;
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(6) to establish the form or terms of Securities of any series as
permitted by Sections 202 and 301;
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 711(b);
(8) if allowed under applicable laws and regulations, to permit
payment in the United States of principal, premium or interest on Bearer
Securities or Coupons, if any;
(9) to provide for the issuance of uncertificated Securities of one
or more series in addition to or in place of certificated Securities;
(10) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein; or
(11) to make any other provisions with respect to matters or
questions arising under this Indenture; provided such other provisions as
may be made shall not adversely affect the interests of the Holders of
outstanding Securities of any series in any material respect.
SECTION 1002. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of all series affected by such supplemental indenture
(acting as one class), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by or pursuant to a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series under this indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section
602, or change any Place of Payment where, or the currency, currencies or
currency unit or units in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
affect adversely the terms, if any, of conversion of any Security into
stock or other securities of the Company or of any other corporation,
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture,
(3) change any obligation of the Company, with respect to
Outstanding Securities of a series, to maintain an office or agency in the
places and for the purposes specified in Section 1102 for such series, or
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(4) modify any of the provisions of this Section, Section 613 or
Section 1107, except to increase any such percentage or to provide with
respect to any particular series the right to condition the effectiveness
of any supplemental indenture as to that series on the consent of the
Holders of a specified percentage of the aggregate principal amount of
Outstanding Securities of such series (which provision may be made
pursuant to Section 202 or Section 301, as the case may be, without the
consent of any Holder) or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder
of each Outstanding Security affected thereby; provided, however, that
this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section and Section 1107, or the deletion of this proviso,
in accordance with the requirements of Section 711(b) and 1001(7).
For purposes of this Section 1002, if the Securities of any series are
issuable upon the exercise of warrants, each holder of an unexercised and
unexpired warrant with respect to such series shall be deemed to be a Holder of
Outstanding Securities of such series in the amount issuable upon the exercise
of such warrant. For such purposes, the ownership of any such warrant shall be
determined by the Company in a manner consistent with customary commercial
practices. The Trustee for such series shall be entitled to rely on an Officers'
Certificate as to the principal amount of Securities of such series in respect
of which consents shall have been executed by holders of such warrants.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 1003. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive (in addition to the opinion
which the Trustee is entitled to receive pursuant to Section 202), and (subject
to Section 701) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this Indenture or otherwise.
SECTION 1004. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 1005. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 1006. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform,
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in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE ELEVEN
Covenants
SECTION 1101. Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of each series of Securities and Coupons,
if any, that it will duly and punctually pay the principal of (and premium, if
any, on) and interest. if any, on the Securities and Coupons, if any, of that
series in accordance with the terms of the Securities and Coupons, if any, of
such series and this Indenture.
SECTION 1102. Maintenance of Office or Agency. If Securities of a series
are issuable only as Registered Securities, the Company will maintain in each
Place of Payment for such series an office or agency where Securities of that
series may be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. If Securities of a series are issuable
as both Registered or Bearer Securities or only as Bearer Securities, the
Company will maintain (A) in the Borough of Manhattan, The City of New York, an
office or agency where any Registered Securities of that series may be presented
or surrendered for payment, where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series may
be surrendered for exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related Coupons may be presented or
surrendered for payment in the circumstances described in the proviso contained
in the last sentence of this first paragraph of Section 1102 (and not
otherwise), (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related Coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Securities of that series pursuant to Section 1108);
provided, however, that if the Securities of that series are listed on any stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in any required city located outside the United States, so long as the
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States, an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee and the Holders of the location, and any change in the location, of any
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency in respect of any series of Securities or shall
fail to furnish the Trustee with the address thereof, such presentations and
surrenders of Securities of that series may be made and notices and demands may
be made or served at the Corporate Trust Office of the Trustee, except that
Bearer Securities of that series and the related Coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Bearer Securities of that series pursuant to Section 1108) at the London office
of the Trustee (or an agent with a London office appointed by the Trustee and
acceptable to the Company), and the Company hereby appoints the same as its
agent to receive such respective presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities shall be made
at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account maintained with
a bank
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located in the United States; provided, however, that, if the Securities of a
series are denominated and payable in Dollars, payment of principal of and any
premium and interest on any Bearer Security (including any additional amounts
payable on Securities of such series pursuant to Section 1108) shall be made at
the office of the Company's Paying Agent in the Borough of Manhattan, The City
of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium, interest or additional amounts, as the case may be, at all
offices or agencies outside the United States maintained for the purpose by the
Company in accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in accordance with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee
and the Holders of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1103. Money for Securities Payments To Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to any series
of Securities, it will, on or before each due date of the principal of (and
premium, if any, on) or interest, if any, on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the relevant currency (or a sufficient number of currency
units, as the case may be) sufficient to pay the principal (and premium, if any,
on) or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, at or prior to the opening of business on each due date
of the principal of (and premium, if any, on) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal, premium
or interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any, on) or interest, if any, on Securities of that
series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in making of any payment
of principal (and premium, if any, on) or interest, if any, on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and charge of this Indenture or for any other purpose, pay, or by Company Order
direct any
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Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any,
on) or interest, if any, on any Security of any series and remaining unclaimed
for two years after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security and
Coupons, if any, shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense and at the direction of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of
New York, notice that such money remains unclaimed and that, after a date
specified herein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company. All moneys payable to the Company by the Trustee or any Paying
Agent as provided in the preceding sentence shall be paid to the Company on May
31 of each year.
SECTION 1104. Limitation on Secured Indebtedness. Unless specified, as
contemplated by Section 202 or Section 301, as the case may be, not to be
applicable to Securities of any series, this Section shall be applicable to
Securities of each series for the benefit of the Securities of such series as
long as any Securities of such series are Outstanding (subject to clause (a)(ii)
of Section 503, as contemplated by subclause (x) thereof). The Company will not
create, assume, incur or guarantee, and will not permit any Restricted
Subsidiary to create, assume, incur or guarantee, any Secured Indebtedness
without making provision whereby all the Securities shall be secured equally and
ratable with (or prior to) such Secured Indebtedness (together with, if the
Company shall so determine, any other indebtedness of the Company or such
Restricted Subsidiary then existing or thereafter created which is not
subordinate to the Securities) so long as such Secured Indebtedness shall be
outstanding unless such Secured Indebtedness, when added to (a) the aggregate
amount of all Secured Indebtedness then outstanding (not including in this
computation Secured Indebtedness if the Securities are secured equally and
ratably with (or prior to) such Secured Indebtedness and further not including
in this computation any Secured Indebtedness which is concurrently being
retired) and (b) the aggregate amount of all Attributable Debt then outstanding
pursuant to Sale and Leaseback Transactions entered into by the Company after
[date of Indenture], or, entered into by a Restricted Subsidiary after [date of
Indenture], or, if later, the date on which it became a Restricted Subsidiary
(not including in this computation any Attributable Debt which is concurrently
being retired), would not exceed 15% of Consolidated Net Worth.
SECTION 1105. Limitation on Sale and Leaseback Transactions. Unless
specified, as contemplated by Section 202 or Section 301, as the case may be,
not to be applicable to Securities of any series, this Section shall be
applicable to Securities of each series for the benefit of the Securities of
such series as long as any Securities of such series are Outstanding (subject to
clause (a)(ii) of Section 503, as contemplated by subclause (x) thereof). The
Company will not, and will not permit any Restricted Subsidiary to, enter into
any Sale and Leaseback Transaction unless (a) the sum of (i) the Attributable
Debt to be outstanding pursuant to such Sale and Leaseback Transaction, (ii) all
Attributable Debt then outstanding pursuant to all other Sale and Leaseback
Transactions entered into by the Company after [date of
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Indenture], or entered into by a Restricted Subsidiary after [date of
Indenture], or if later, the date on which it became a Restricted Subsidiary,
and (iii) the aggregate of all Secured Indebtedness then outstanding (not
including in this computation Secured Indebtedness if the Securities are secured
equally and ratable with (or prior to) such Secured Indebtedness) would not
exceed 15% of Consolidated Net Worth or (b) an amount equal to the greater of
(i) the net proceeds to the Company or the Restricted Subsidiary of the sale of
the Principal Property sold and leased back pursuant to such Sale and Leaseback
Transaction and (ii) the amount of Attributable Debt to be outstanding pursuant
to such Sale and Leaseback Transaction, is applied to the retirement of Funded
Debt of the Company or any Restricted Subsidiaries (other than Funded Debt which
is subordinated to the Securities or which is owing to the Company or any
Restricted Subsidiaries) within 180 days after the consummation of such Sale and
Leaseback Transaction.
SECTION 1106. Statement by Officers as to Default. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
written certificate signed by the principal executive officer, the principal
financial officer or the principal accounting officer of the Company, stating
that:
(1) a review of the activities of the Company during such year and
of performance under this Indenture has been made under such officer's
supervision; and
(2) to such officer's knowledge, based on such review, the Company
has fulfilled all its obligations, and has complied with all conditions
and covenants, under this Indenture throughout such year, or, if there has
been a default in the fulfillment of any such obligation, condition or
covenant, specifying each such default known to him and the nature and
status thereof. For purposes of this Section 1106, compliance shall be
determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
SECTION 1107. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Section 1104 or Section 1105 if before the time for such compliance the Holders
of not less than a majority in principal amount of the Outstanding Securities of
all series affected thereby shall, by Act of such Holders (acting as one class),
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 1108. Additional Amounts. If the Securities of a series provide
for the payment of additional amounts, the Company will pay to the Holder of any
Security of such series or any related Coupon additional amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium or interest on, or in respect of, any
Security of any series or payment of any related Coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of additional amounts provided
for in this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding additional amounts
in those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each
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date of payment of principal and any premium or interest if there has been any
change with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's Paying Agent
or Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
Coupons who are United States Aliens (as defined in such Securities) without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of that series. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such Payments to such Holders of
Securities or Coupons and the Company will pay to the Trustee or such Paying
Agent the additional amounts required by this Section. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 202 or
Section 301, as the case may be, for Securities of any series) in accordance
with this Article.
SECTION 1202. Election To Redeem; Notice to Trustee. If the Company shall
desire to exercise the right to redeem all, or, as the case may be, any part of
the Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notifying the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed. In the case
of any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1203. Selection by Trustee of Securities To Be Redeemed. If less
than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
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SECTION 1204. Notice of Redemption. Notice of redemption shall be given not
less than 30 nor more than 60 days prior to the Redemption Date, to each Holder
of Securities to be redeemed, as provided in Section 106.
Each such notice of redemption shall specify the Redemption Date, the
Redemption Price, the Place or Places of Payment, that the Securities of such
series are being redeemed at the option of the Company pursuant to provisions
contained in the terms of the Securities of such series or in a supplemental
indenture establishing such series, if such be the case, together with a brief
statement of the facts permitting such redemption, that on the Redemption Date
the Redemption Price will become due and payable upon each Security redeemed,
that payment will be made upon presentation and surrender of the applicable
Securities, that all Coupons, if any, maturing subsequent to the date fixed for
redemption shall be void, that any interest accrued to the Redemption Date will
be paid as specified in said notice, that the redemption is pursuant to the
sinking fund, if such is the case, and that on and after said Redemption Date
any interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all the Securities of any series are to be redeemed, the
notice of redemption shall specify the registration and, if any, CUSIP numbers
of the Securities of such series to be redeemed, and, if only Bearer Securities
of any series are to be redeemed, and if such Bearer Securities may be exchanged
for Registered Securities, the last date on which exchanges of Bearer Securities
for Registered Securities not subject to redemption may be made. In case any
Security of any series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the Redemption Date, upon surrender of such Security and
any Coupons appertaining thereto, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof and with appropriate
Coupons will be issued, or, in the case of Registered Securities providing
appropriate space for such notation, at the option of the Holders, the Trustee,
in lieu of delivering a new Security or Securities as aforesaid, may make a
notation on such Security of the payment of the redeemed portion thereof.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1205. Deposit of Redemption Price. On or before the opening of
business on any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own paying Agent,
segregate and hold in trust as provided in Section 1103) an amount of money in
the relevant currency (or a sufficient number of currency units, as the case may
be) sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1206. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest and the Coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all Coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable only at
an office or agency located outside the United States (except otherwise provided
in Section 1102) and, unless otherwise specified as contemplated by Section 202
or Section 301, as the case may be, only upon presentation and surrender of
Coupons for such interest; provided further that, unless
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otherwise specified as contemplated by Section 202 or Section 301, as the case
may be, installments of interest on Registered Securities whose Stated Maturity
is on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 406.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing Coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by Coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1102) and,
unless otherwise specified as contemplated by Section 202 or Section 301, as the
case may be, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1207. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at a Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and make available
for delivery to the Holder of such Security without service charge, a new
Security or Securities (with appropriate Coupons) of the same series and Stated
Maturity, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered or, in the case of Registered
Securities providing appropriate space for such notation, at the option of the
Holder, the Trustee, in lieu of delivering a new Security or Securities as
aforesaid, may make a notation on such Security of the Payment of the redeemed
portion thereof.
ARTICLE THIRTEEN
Sinking Funds
SECTION 1301. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise specified as contemplated by Section 202 or Section
301, as the case may be, for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1302. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
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SECTION 1302. Satisfaction of Sinking Fund Payments with Securities. The
Company (1) may deliver Outstanding Securities (including all unmatured Coupons
appertaining thereto) of a series (other than any previously called for
redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have not
been previously so credited. Such Securities shall be received and the
outstanding principal amount thereof credited for such purpose by the Trustee at
the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1303. Redemption of Securities for Sinking Fund. Not less than 60
days prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing 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 Securities of that series pursuant to Section 1302 and
will also deliver to the Trustee any Securities (including all unmatured Coupons
appertaining thereto) to be so delivered. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1203 and
cause notice of the redemption thereof to given in the name of and at the
expense of the Company in the manner provided in Section 1204. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Section 1206 and 1207.
ARTICLE FOURTEEN
Meetings of Holders of Securities
SECTION 1401. Purposes for Which Meetings May Be Called. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1402. Call, Notice and Place of Meetings. (a) The Trustee may at
any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 1401, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, or in London, as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, 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 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1401, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the 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 Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of
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Manhattan, The City of New York, or in London, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1403. Persons Entitled To Vote at Meetings. To be entitled to vote
at any meeting of Holders of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such series or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons 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 1404. Quorum; Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series. In the absence of
a quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any 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 1402(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 1002, and subject to the
provisions described in the next succeeding paragraph, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of that series; provided,
however, that any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is equal to or less than a majority, in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Securities of that series. Any resolution passed or
decision taken at any meeting of Holders of Securities of any series duly held
in accordance with this Section shall be binding on all the Holders of
Securities of such series and the related Coupons, whether or not present or
represented at the meeting.
With respect to any consent, waiver or other action which this Indenture
expressly provides may be given by the Holders of a specified percentage of
Outstanding Securities of all series affected thereby (acting as one class),
only the principal amount of Outstanding Securities of any series represented at
a meeting or adjourned meeting duly reconvened at which a quorum is present,
held in accordance with this Section, and voting in favor of such action, shall
be counted for purposes of calculating the aggregate principal amount of
Outstanding Securities of all series affected thereby favoring such action.
SECTION 1405. 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 Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the
<PAGE> 83
75
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 Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holder of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 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 Securities as provided in Section 1402(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 (or the equivalent thereof) principal
amount of the Outstanding Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1402 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 1402 and, if applicable, Section 1404. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one
<PAGE> 84
76
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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
THE WASHINGTON POST COMPANY,
by
---------------------------
Name:
Title:
[SEAL]
Attest:
- --------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee,
by
---------------------------
Name:
Title:
[SEAL]
Attest:
- --------------------------------
Name:
Title:
<PAGE> 85
77
DISTRICT OF COLUMBIA )
) ss.:
CITY OF WASHINGTON )
On the ___ day of _________, 1998, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose and
say that he is a _______________ of THE WASHINGTON POST COMPANY, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
----------------------------------------------
Notary Public
Name:
Notary Public, District of Columbia
No.:
Qualified in:
Commission Expires:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of __________, 1998, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he or she is a _______________ of THE FIRST NATIONAL BANK OF CHICAGO,
one of the corporations described in and which executed the foregoing
instrument; that he or she knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he or she
signed his or her name thereto by like authority.
----------------------------------------------
Notary Public
Name:
Notary Public, State of New York
No.:
Qualified in:
Commission Expires:
<PAGE> 86
Exhibit A
(Form of Fixed Rate
Security with and without Optional
Redemption Provision)
(Form of Face of [Note]2/ )
[Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]3/
No.:
THE WASHINGTON POST COMPANY
% [Note] Due
No.: CUSIP No.:
$
THE WASHINGTON POST COMPANY, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to or
registered assigns, the principal sum of Dollars, at the office or
agency of the Company in the Borough of Manhattan, The City and State of New
York, on , in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payments of public and
private debts, and to pay interest, semi-annually on and of each
year, on said principal sum at said office or agency, in like coin or currency,
at the rate of % per annum, from the or the , as the case
may be, next preceding the date of this [Note] to which interest has been paid,
unless the date hereof is a date to which interest has been paid, in which case
from the date of this [Note], or unless no interest has been paid on the [Notes]
due (as defined on the reverse hereof), in which case from until
payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after or
as the case may be, and before the following or , this
[Note] shall bear interest from such or , provided, however, that
if the Company shall default in the payment of interest due on such or
, then this [Note] shall bear interest from the next preceding or
to which interest has been paid, or, if no interest has been paid on
the [Notes] due , from. The interest so payable on any or
will subject to certain exceptions provided in the Indenture referred
to on the reverse hereof, be paid to the person in whose name this [Note] is
registered at the close of business on such or , as the
case may be, next preceding such or , unless the Company
shall default in the payment of interest due on such interest payment date, in
which case such defaulted interest, at the option of the Company, may be paid to
the person in whose name this [Note] is registered at the close of business on a
special record date for the payment of such defaulted interest established by
notice to the registered holders of [Notes] not less than 10 days preceding such
special record date or may be paid in any other lawful
- ----------------
2/ Bracketed references to "Note" or "Notes" should be changed to reflect the
designation of the series of Securities being issued.
3/ The bracketed language is to be included if the Securities are included
within DTC's book-entry system.
<PAGE> 87
2
manner not inconsistent with the requirements of any securities exchange on
which the [Notes] due may be listed. Payment of interest may, at the
option of the Company, be made by check mailed to the registered address of the
person entitled thereto.
Reference is made to the further provisions of this [Note] set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This [Note] shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by the Trustee
under the Indenture referred to on the reverse hereof.
<PAGE> 88
3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
THE WASHINGTON POST
COMPANY
by
---------------------------------
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities of the
Series designated herein issued under
the within-mentioned Indenture.
by
---------------------------------
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
by
- ---------------------------------
Authorized Signatory
<PAGE> 89
4
(Form of Reverse of [Note])
This [Note] is one of a duly authorized issue of unsecured debentures,
notes or other evidences of indebtedness of the Company (hereinafter called the
"Securities"), of the series hereinafter specified, all issued or to be issued
under an indenture dated as of , 1998 (hereinafter called the "Indenture"),
duly executed and delivered by the Company to The First National Bank of
Chicago, a national banking association, as trustee (hereinafter called the
"Trustee"), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the respective rights and duties thereunder
of the Trustee, the Company and the holders of the Securities. The Securities
may be issued in one or more series, which different series may be issued in
various aggregate principal amounts, may mature at different times, may bear
interest at different rates, may be subject to different redemption provisions,
may be subject to different sinking, purchase or analogous funds, may be subject
to different covenants and Events of Default and may otherwise vary as in the
Indenture provided. This [Note] is one of a series designated as the %[Notes]
due of the Company (hereinafter called the "[Notes] due ") issued under
the Indenture, limited in aggregate principal amount to $ .
In case an Event of Default with respect to the [Notes] due , as
defined in the Indenture, shall have occurred and be continuing, the principal
hereof together with interest accrued thereon, if any, may be declared, and upon
such declaration shall become, due and payable, in the manner, with the effect
and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Securities at the time outstanding of all
series to be affected (acting as one class) to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in any
manner the rights of the holders of the Securities of such series to be
affected; provided, however, that no such supplemental indenture shall, among
other things, (i) change the fixed maturity of the principal of, or any
installment of principal of or interest on, any Security; (ii) reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof; (iii) impair the right to institute suit for the
enforcement of any such payment on or after the fixed maturity thereof (or, in
the case of redemption, on or after the redemption date); (iv) reduce the
percentage in principal amount of the outstanding Securities of any series, the
consent of whose holders is required for any such supplemental indenture, or the
consent of whose holders is required for any waiver (of compliance with certain
provisions of the Indenture or certain defaults thereunder and their
consequences) provided for in the Indenture; (v) change any obligation of the
Company, with respect to outstanding Securities of a series, to maintain an
office or agency in the places and for the purposes specified in the Indenture
for such series; or (vi) modify any of the foregoing provisions or the
provisions for the waiver of certain covenants and defaults, except to increase
any applicable percentage of the aggregate principal amount of outstanding
Securities the consent of the holders of which is required or to provide with
respect to any particular series the right to condition the effectiveness of any
supplemental indenture as to that series on the consent of the holders of a
specified percentage of the aggregate principal amount of outstanding Securities
of such series or to provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the holder of each
outstanding Security affected thereby. It is also provided in the Indenture that
the holders of a majority in aggregate principal amount of the Securities of a
series at the time outstanding may on behalf of the holders of all the
Securities of such series waive any past default under the Indenture with
respect to such series and its consequences, except a default in the payment of
the principal of, premium, if any, or interest, if any, on any Security of such
series or in respect of a covenant or provision which cannot be modified without
the consent of the
<PAGE> 90
5
Holder of each outstanding Security of the series affected. Any such consent or
waiver by the holder of this [Note] shall be conclusive and binding upon such
holder and upon all future holders and owners of the [Note] and any [Notes] due
which may be issued in exchange or substitution herefor, irrespective of
whether or not any notation thereof is made upon this [Note] or such other
[Notes] due .
No reference herein to the Indenture and no provision of this [Note] or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this [Note] at the place, at the respective times, at the rate and
in the coin or currency herein prescribed.
The Indenture permits the Company to Discharge its obligations with
respect to the [Notes] due on the 91st day following the satisfaction of the
conditions set forth in the Indenture, which include the deposit with the
Trustee of money or U.S. Government Obligations or a combination thereof
sufficient to pay and discharge each installment of principal of (including
premium, if any, on) and interest, if any, on the outstanding [Notes] due .
If the Company shall, in accordance with Section 901 of the Indenture,
consolidate with or merge into any other corporation or convey or transfer all
or substantially all its properties and assets as an entirety to any Person, the
successor shall succeed to, and be substituted for, the Person named as the
"Company" on the face of this [Note], all on the terms set forth in the
Indenture.
The [Notes] due are issuable in registered form without coupons
in denominations of $1,000 or any integral multiple thereof. In the manner and
subject to the limitations provided in the Indenture, but without the payment of
any service charge, [Notes] due may be exchanged for an equal aggregate
principal amount of [Notes] due of other authorized denominations at the office
or agency of the Company maintained for such purpose in the Borough of
Manhattan, the City and State of New York.
[The [Notes] due may be redeemed as a whole, or from time to time
in part, at the option of the Company at any time upon mailing a notice of such
redemption not less than 30 nor more than 60 days prior to the date fixed for
redemption to the holders of the [Notes] due at their last registered addresses,
all as provided in the Indenture, at the following optional redemption prices
(expressed in percentages of the principal amount), together in each case with
accrued interest to the date fixed for redemption.
If redeemed during the twelve-month period beginning
Year Percentage
---- ----------
]4/
Upon due presentment for registration of transfer of this [Note] at the
office or agency of the Company for such registration in the Borough of
Manhattan, the City and State of New York, a new [Note] or [Notes] of authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange herefor, subject to the limitations provided in the
Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
- ---------------------
4/ Bracketed language to be included in Securities redeemable at the option
of the Company.
<PAGE> 91
6
Prior to due presentment for registration of transfer of this [Note],
the Company, the Trustee and any agent of the Company or the Trustee may deem
and treat the registered holder hereof as the absolute owner of this [Note]
(whether or not this [Note] shall be overdue) for the purpose of receiving
payment of the principal of, premium, if any, and interest on this Note, as
herein provided, and for all other purposes, and neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. All payments made to or upon the order of such
registered holder shall, to the extent of the sum or sums paid, effectively
satisfy and discharge liability for moneys payable on this [Note].
No recourse for the payment of the principal of, premium, if any, or
interest on this [Note], or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
[Note], or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
Unless otherwise defined in this [Note], all terms used in this [Note]
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
THIS [NOTE] SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
<PAGE> 92
EXHIBIT B
[FORMS OF CERTIFICATION]
EXHIBIT B.1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY]
CERTIFICATE
THE WASHINGTON POST COMPANY
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person, or for offer to resell or
for resale to a United States person or any person inside the United States, or,
if a beneficial interest in the Securities is being acquired by a United States
person, that such United States person is a financial institution as defined in
Section 1.165-12(c)(1)(v) of the United States Treasury Regulations, or is
acquiring through a financial institution, and that the Securities are held by a
financial institution that has agreed to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder and that it is not purchasing for offer to resell or
for resale inside the United States.
As used herein, "United States person" means any citizen or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States, or any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the
above-captioned Securities in bearer form as to all such Securities.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or
<PAGE> 93
8
threatened in connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy thereof to any
interested party in such proceedings.
Dated:_________ , 19______
[To be dated on or after
_________________ , 19 the date
determined as provided in the Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
----------------------------------
(Authorized Signatory)
Name:
Title:
<PAGE> 94
EXHIBIT B.2
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
AND CEDEL S.A.
IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY]
CERTIFICATE
THE WASHINGTON POST COMPANY
[Insert title or sufficient description
of Securities to be delivered]
This is to certify with respect to $_______ principal amount of the
above-captioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our "Qualified Account Holders") a certificate with respect to such
portion substantially in the form attached hereto and (ii) that we are not
submitting herewith for exchange any portion of the temporary global Security
representing the above-captioned Securities excepted in such certificates.
We further certify that as of the (date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Date:
[To be dated no earlier
than the Exchange Date]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, BRUSSELS
OFFICE, as Operator of the Euro-clear
System]
[CEDEL S.A.]
By
--------------------------------
<PAGE> 95
EXHIBIT B.3
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
AND CEDEL S.A. TO OBTAIN
INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
THE WASHINGTON POST COMPANY
[Insert title or sufficient
description of Securities]
We confirm that the interest payable on the Interest Payment Date on
[Insert Date] will be paid to each of the persons appearing in our records as
being entitled to interest payable on such date from whom we have received a
written certification, dated not earlier than such Interest Payment Date,
substantially in the form attached hereto. We undertake to retain certificates
received from our member organizations in connection herewith for four years
from the end of the calendar year in which such certificates are received.
We undertake that any interest received by us and not paid as provided
above shall be returned to the Trustee for the above Securities immediately
prior to the expiration of two years after such Interest Payment Date in order
to be repaid by such Trustee to the above issuer at the end of two years after
such Interest Payment Date.
Date:____________ , 19_______
[To be dated on or after the
relevant Interest Payment Date]
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, BRUSSELS
OFFICE, as Operator of the Euro-clear
System]
[CEDEL S.A.]
By
--------------------------------
<PAGE> 96
EXHIBIT B.4
[FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS
TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
THE WASHINGTON POST COMPANY
[Insert title or sufficient
description of Securities]
This is to certify that as of the Interest Payment Date on [Insert Date]
and except as provided in the third paragraph hereof, the above-captioned
Securities held by you for our account are not beneficially owned by a United
States person, and have not been acquired by or on behalf of a United States
person, or for offer to resell or for resale to a United States person or any
person inside the United States, or, if any of such Securities held by you for
our account are beneficially owned by a United States person, (i) such United
States person is a financial institution within the meaning of Section
1.165-12(c)(1)(v) of the United States Treasury Regulations purchasing for its
own account or has acquired such Securities through a financial institution and
(ii) such Securities are held by a financial institution that has agreed to
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder and that it did
not purchase for offer to resell or for resale inside the United States.
As used herein, "United States person" means any citizen or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
This certificate excepts and does not relate to U.S. $ principal
amount of the above-captioned Securities appearing in your books as being held
for our account as to which we are not yet able to certify and as to which we
understand interest cannot be credited unless and until we are able to so
certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Date:____________ , 19______
[To be dated on or after
the 15th day before the
relevant Interest Payment Date]
[Name of Person Entitled to Receive
Interest]
------------------------------------
(Authorized Signature)
Name:
Title:
<PAGE> 97
EXHIBIT B.5
[FORM OF CONFIRMATION TO BE SENT TO
PURCHASERS OF BEARER SECURITIES]
By your purchase of the securities referred to in the accompanying
continuation (the "Securities"):
You represent that you are not a United States person or, if you are a
United States person, you are a financial institution as that term is defined in
Section 1.165-12(c)(1)(v) of the United States Treasury Regulations, or are
acquiring through a financial institution, and that the Securities will be held
by a financial institution that agrees to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as amended, and the regulations thereunder and are not purchasing the
Securities on behalf of any United States person other than such a financial
institution or for offer to resell or for resale inside the United States.
If you are a dealer, (a) you also represent that you have not offered,
sold or delivered, and agree that you will not offer, sell, resell or deliver,
any of such Securities, directly or indirectly, in the United States or to any
United States person other than such a financial institution and (b) you agree
that you will deliver to all purchasers of such Securities from you a written
statement in this form.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction and "United States
person" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States and an estate or trust the income of which is subject to United
States Federal income taxation regardless of its source.
<PAGE> 1
Exhibit 5
December 23, 1998
The Washington Post Company
1150 15th Street, NW
Washington, DC 20071
Ladies and Gentlemen:
The Washington Post Company, a Delaware corporation (the "Company"), is
registering for sale under the Securities Act of 1933, as amended (the "Act"),
$400,000,000 in aggregate principal amount of the Company's debt securities (the
"Debt Securities"). The Debt Securities are to be offered from time to time
pursuant to a Registration Statement on Form S-3 being filed under the Act on
the date hereof (the "Registration Statement") and issued from time to time
under an Indenture (the "Indenture") between the Company and The First Chicago
Trust Company of New York, as Trustee (the "Trustee"), the form of which has
been filed as an exhibit to the Registration Statement.
As Vice President, General Counsel and Secretary for the Company, I have
general supervision over the Company's legal affairs. In such capacity, I, or
lawyers under my supervision, have examined originals or copies certified to our
satisfaction of such documents, certificates or other statements of public
officials and corporate officers of the Company and such other papers as we have
deemed relevant and necessary in order to give the opinion hereinafter set
forth. In this connection, we assumed the genuineness of signatures on, and the
authenticity of, all documents so examined. As to any facts material to this
opinion which were not independently established by us, we relied on such
certificates or other statements of public officials and officers of the Company
with respect to the accuracy of factual matters contained therein.
Based upon the foregoing, and the legal considerations that I deem
relevant, it is my opinion that the Debt Securities of a particular series
offered (the "Offered Debt Securities") will be legally issued and binding
obligations of the Company (except as may be limited by bankruptcy, insolvency,
reorganization or other laws relating to the enforcement of creditors' rights or
by general principles of equity) when (i) the Registration Statement relating to
the Offered Debt Securities, as amended (including all necessary post-effective
amendments), shall have become effective under the Act, (ii) the
<PAGE> 2
2
Indenture shall have been duly authorized, executed and delivered by the Company
and the Trustee, and duly qualified under the Trust Indenture Act of 1939, as
amended, and (iii) the Offered Debt Securities shall have been duly executed and
authenticated as provided in the Indenture and duly delivered to the purchasers
thereof against payment of the agreed consideration therefore.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference under the caption "Legal Opinions"
in the Prospectus forming a part thereof or used in connection therewith.
Very truly yours,
/s/Diana M. Daniels
-------------------
Diana M. Daniels
<PAGE> 1
Exhibit 12
The Washington Post Company and Consolidated Subsidiaries
Computation of Ratio of Earnings to Fixed Charges
(Dollars in Thousands)
<TABLE>
<CAPTION>
Thirty-Nine Weeks Ended Fiscal Year Ended
-------------------------------- ----------------------------------------------------------------------------
September 27, September 28, December 28, December 29, December 31, January 1, January 2,
1998 1997 1997 1996 1995 1995 1994
--------------- -------------- ------------- -------------- ------------- ------------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income from
continuing
operations
before income
taxes and
cumulative
effect of
change in
accounting
principle $569,004 $314,012 $463,074 $360,217 $311,396 $286,922 $263,467
Adjustments:
Fixed charges,
as below 19,443 9,524 12,562 10,947 13,233 13,123 12,383
Interest
capitalized (4,300) - (450) - - - -
Preferred
stock
dividend
requirements,
adjusted to a
pre-tax
equivalent
basis (1,567) (1,593) (1,593) (1,133) - - -
Equity in
(income)
losses of
less than
50 percent
owned
entities (2,387) (8,497) (10,512) (19,702) (24,512) (7,325) 1,994
</TABLE>
<PAGE> 2
2
<TABLE>
<CAPTION>
Thirty-Nine Weeks Ended Fiscal Year Ended
-------------------------- -----------------------------------------------------------------
September 27, September 28, December 28, December 29, December 31, January 1, January 2,
1998 1997 1997 1996 1995 1995 1994
------------ ----------- ---------- ---------- ---------- ---------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Dividends from
less than
50 percent
owned
entities 662 1,947 3,584 3,403 3,197 2,992 2,742
------------ ----------- ---------- ---------- ---------- ---------- -------------
Earnings as
adjusted $580,855 $315,393 $466,665 $353,732 $303,314 $295,712 $280,586
============ =========== ========== ========== ========== ========== =============
Fixed charges:
Interest
expense and
amortization
of deferred
financing
costs,
expensed or
capitalized $9,121 $505 $1,702 $1,514 $5,600 $5,590 $4,983
Portion of rent
expense
representative
of the
interest
factor 8,755 7,425 9,267 8,300 7,633 7,533 7,400
Preferred stock
dividend
requirements,
adjusted to a
pre-tax
equivalent
basis 1,567 1,593 1,593 1,133 - - -
Total fixed
charges $19,443 $9,523 $12,562 $10,947 $13,233 $13,123 $12,383
============ =========== ========== ========== ========== ========== =============
</TABLE>
<PAGE> 3
3
<TABLE>
<CAPTION>
Thirty-Nine Weeks Ended Fiscal Year Ended
---------------------------- -----------------------------------------------------------------
September 27, September 28, December 28, December 29, December 31, January 1, January 2,
1998 1997 1997 1996 1995 1995 1994
----------- ------------ ----------- ----------- ------------ ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of
earnings to
fixed charges 29.9(a) 33.1(b) 37.2(c) 32.3 22.9 22.5 22.7(d)
========= ========= ======== ====== ====== ====== =========
</TABLE>
- --------------------
a- For the thirty-nine weeks ended September 27, 1998, the Company's pre-tax
income included non-recurring gains of approximately $308.5 million arising
from the disposition of the Company's investment interests in Cowles Media
Company and Junglee Corporation and the sale of the assets of 14 small cable
television systems. Excluding these gains, the ratio of earnings to fixed
charges would have been 14.0.
b- For the thirty-nine weeks ended September 28, 1997, pre-tax income included
a non-recurring gain of approximately $24.8 million resulting from the sale
of the assets of the Company's PASS Sports subsidiary. Excluding this gain,
the ratio would have been 30.5.
c- For the fiscal year ended December 28, 1997, pre-tax income included
non-recurring gains of approximately $71.1 million resulting from the sale
of the assets of the Company's PASS Sports subsidiary and the Company's
investment interests in Bear Island Paper Company, L.P. and Bear Island
Timberlands Company, L.P. Excluding these gains, the ratio would have been
31.5.
d- For the fiscal year ended January 2, 1994, pre-tax income includes a
non-recurring gain of approximately $20.5 million arising from the sale of
the Company's cable franchises in the United Kingdom. Excluding this gain,
the ratio would have been 21.0.
<PAGE> 1
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
January 27, 1998 appearing on page 26 of The Washington Post Company's Annual
Report on Form 10-K for the fiscal year ended December 28, 1997. We also consent
to the references to us under the heading "Experts" in such Prospectus.
PricewaterhouseCoopers LLP
Washington, DC
December 22, 1998
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
Form S-3 Registration Statement for
Registration of Debt Securities
Each person whose signature appears below hereby constitutes and appoints
Donald E. Graham, Alan G. Spoon, John B. Morse, Jr. and Diana M. Daniels, and
each acting alone, his/her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him/her and in his/her name,
place and stead, in any and all capacities, to sign the Registration Statement
on Form S-3 under the Securities Act of 1933 for registration of up to $400
million principal amount of debt securities of the Company, and to sign any and
all amendments or supplements to such Registration Statement, whether
pre-effective or post-effective and any subsequent registration statement filed
by the registrant pursuant to Rule 462(b) of the Securities Act of 1933, and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing necessary or appropriate to be done with respect to such
Registration Statement or any amendments or supplements hereto in the premises,
as fully to all intents and purposes as he/she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agents, or
their substitute or resubstitutes, may lawfully do or cause to be done by virtue
hereof.
<TABLE>
<S> <C> <C>
Dated: 12/11/98 /s/Donald E. Graham Chairman and Chief
-------- ------------------------- Executive Officer
Donald E. Graham (Principal Executive
Officer) and Director
Dated: 12/11/98 /s/Alan G. Spoon President, Chief
-------- ------------------------- Operating Officer and
Alan G. Spoon Director
Dated: 12/11/98 /s/Katharine Graham Chairman of the Executive
-------- ------------------------- Committee of the Board
Katharine Graham and Director
Dated: 12/11/98 /s/John B. Morse, Jr. Vice President-Finance
-------- ------------------------ (Principal Financial and
John B. Morse, Jr. Accounting Officer)
Dated: 12/11/98 /s/Warren E. Buffett Director
-------- -----------------------
Warren E. Buffett
Dated: 12/11/98 /s/Daniel B. Burke Director
-------- -----------------------
Daniel B. Burke
</TABLE>
<PAGE> 2
2
<TABLE>
<S> <C> <C>
Dated: 12/11/98 /s/James B. Burke Director
-------- ---------------------------
James B. Burke
Dated: 12/11/98 /s/Martin Cohen Director
-------- ---------------------------
Martin Cohen
Dated: 12/10/98 /s/George J. Gillespie III Director
-------- ---------------------------
George J. Gillespie III
Dated: 12/11/98 /s/Ralph E. Gomory Director
-------- ---------------------------
Ralph E. Gomory
Dated: 12/11/98 /s/Donald R. Keough Director
-------- ---------------------------
Donald R. Keough
Dated: 12/16/98 /s/Barbara Scott Preiskel Director
-------- ---------------------------
Barbara Scott Preiskel
Dated: 12/11/98 /s/William J. Ruane Director
-------- ---------------------------
William J. Ruane
Dated: 12/11/98 /s/Richard D. Simmons Director
-------- ---------------------------
Richard D. Simmons
Dated: 12/11/98 /s/George W. Wilson Director
-------- ---------------------------
George W. Wilson
</TABLE>
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
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 FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------
THE WASHINGTON POST COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 53-0182885
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1150 15TH STREET, N.W.
WASHINGTON, D.C. 20071
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 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.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now
in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 15th day of
December, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /s/ SANDRA L. CARUBA
SANDRA L. CARUBA
VICE PRESIDENT
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc. filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
December 15, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between The Washington Post
Company and The First National Bank of Chicago, the undersigned, in accordance
with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby
consents that the reports of examinations of the undersigned, made by Federal or
State authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /s/ SANDRA L. CARUBA
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98
ST-BK: 17-1630 FFIEC 031
Address One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C400
----
RCFD BIL MIL THOU
---- ------------
ASSETS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1)................... 0081 4,898,646 1.a
b. Interest-bearing balances(2)............................................ 0071 4,612,143 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 9,817,318 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 6,071,229 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C)...................................................................... 2122 26,327,215 4.a
b. LESS: Allowance for loan and lease losses............................... 3123 412,850 4.b
c. LESS: Allocated transfer risk reserve................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c).................................... 2125 25,914,365 4.d
5. Trading assets (from Schedule RD-D)........................................ 3545 6,924,064 5.
6. Premises and fixed assets (including capitalized leases)................... 2145 731,747 6.
7. Other real estate owned (from Schedule RC-M)............................... 2150 6,424 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)............................................. 2130 153,385 8.
9. Customers' liability to this bank on acceptances outstanding 2155 352,324 9.
10. Intangible assets (from Schedule RC-M)..................................... 2143 295,823 10.
11. Other assets (from Schedule RC-F).......................................... 2160 2,193,803 11.
12. Total assets (sum of items 1 through 11)................................... 2170 61,971,271 12.
</TABLE>
- --------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
LIABILITIES
<S> <C> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)...................................... 2200 20,965,124 13.a
(1) Noninterest-bearing(1)....................................... 6631 9,191,662 13.a1
(2) Interest-bearing............................................. 6636 11,773,462 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)... 2200 15,912,956 13.b
(1) Noninterest bearing.......................................... 6631 475,182 13.b1
(2) Interest-bearing............................................. 6636 15,437,774 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,245,925 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 359,381 15.a
b. Trading Liabilities(from Sechedule RC-D)......................... RCFD 3548 5,614,049 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less....................... 2332 4,603,402 16.a
b. With original maturity of more than one year. A547 328,001 16.b
c. With original maturity of more than three years A548 324,984 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding 2920 352,324 18.
19. Subordinated notes and debentures................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G).............................. 2930 1,833,935 20.
21. Total liabilities (sum of items 13 through 20)...................... 2948 56,940,081 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus....................... 3838 0 23.
24. Common stock........................................................ 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) 3839 3,192,857 25.
26. a. Undivided profits and capital reserves........................... 3632 1,614,511 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities....................................................... 8434 27,815 26.b
27. Cumulative foreign currency translation adjustments 3284 (4,851) 27.
28. Total equity capital (sum of items 23 through 27) 3210 5,031,190 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................... 3300 61,971,271 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number auditors as of any date during 1996
<TABLE>
<S> <C> <C>
--- Number
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 6724 . . N/A M.1.
---
1 = Independent audit of the bank conducted in accordance 4.= Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which
submits a report on the consolidated holding company 6 = Compilation of the bank's financial statements by external
(but not on the bank separately) auditors
3 = Directors' examination of the bank conducted in 7 = Other audit procedures (excluding tax preparation work)
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by 8 = No external audit work
state chartering authority)
</TABLE>
- ------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
