<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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A. H. BELO CORPORATION
(Exact name of registrant as specified in its charter)
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<C> <C>
DELAWARE 75-0135890
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
MICHAEL J. MCCARTHY
SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
P. O. BOX 655237 P. O. BOX 655237
DALLAS, TEXAS 75265-5237 DALLAS, TEXAS 75265-5237
(214) 977-6606 (214) 977-6606
(Address, including zip code, and telephone (Name, address, including zip code, and
number, including area code, of registrant's telephone number, including area code,
principal executive offices) of agent for service)
Copies to:
GUY KERR, ESQ. JOERG H. ESDORN, ESQ.
LOCKE PURNELL RAIN HARRELL GIBSON, DUNN & CRUTCHER LLP
(A PROFESSIONAL CORPORATION) 200 PARK AVENUE
2200 ROSS AVENUE, SUITE 2200 NEW YORK, NEW YORK 10166-0193
DALLAS, TEXAS 75201-6776 (212) 351-4000
(214) 740-8000
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effectiveness of the Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If the only 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]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE PRICE PER OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED UNIT(1) PRICE FEE
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<S> <C> <C> <C> <C>
Debt Securities and Warrants to
Purchase Debt Securities...... $1,500,000,000(2)(3) 100% $1,500,000,000 $454,545
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Or, if any Debt Securities are issued at an original issue discount, such
greater amount as shall result in an aggregate public offering price or
purchase price of $1,500,000,000 or the equivalent thereof in foreign
denominated currencies or composite currencies.
(3) In United States dollars or the equivalent thereof in foreign denominated
currencies or composite currencies.
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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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED APRIL 21, 1997
PROSPECTUS
$1,500,000,000
[A H BELO LOGO]
DEBT SECURITIES
AND
WARRANTS TO PURCHASE
DEBT SECURITIES
---------------------
A. H. Belo Corporation (the "Company") intends to issue from time to time
in one or more series its unsecured debt securities ("Debt Securities") and
warrants ("Warrants") to purchase Debt Securities (the Debt Securities and the
Warrants being herein collectively called the "Securities") with an aggregate
initial public offering price or purchase price of up to $1,500,000,000, or the
equivalent thereof if any of the Securities are denominated in a foreign
currency or composite currency such as the European Currency Unit ("ECU"). The
Debt Securities of each series and the Warrants will be offered on terms to be
determined at the time of sale. See "Description of Debt Securities" and
"Description of Warrants." The Debt Securities and Warrants may be sold for
United States dollars, foreign currencies or composite currencies such as the
ECU, and the principal of, premium, if any, and any interest on the Debt
Securities may be payable in United States dollars, foreign currencies or
composite currencies such as the ECU. The specific designation, aggregate
principal amount, the currency or composite currency in which the principal,
premium, if any, and any interest are payable, the rate (or method of
calculation) and the time and place of payment of any interest, authorized
denominations, maturity, offering price, any redemption terms and any other
specific terms of the Debt Securities in respect of which this Prospectus is
being delivered are set forth in the accompanying Prospectus Supplement (the
"Prospectus Supplement"). With regard to the Warrants, if any, in respect of
which this Prospectus is being delivered, the Prospectus Supplement sets forth a
description of the Debt Securities for which the Warrants are exercisable and
the offering price, if any, exercise price, duration and any other specific
terms of the Warrants.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
The Securities may be sold by the Company directly to purchasers, through
agents designated from time to time, or to or through underwriters or dealers.
If underwriters or agents are involved in the offering of Securities, the names
of the underwriters or agents will be set forth in the Prospectus Supplement. If
an underwriter, agent or dealer is involved in the offering of any Securities,
the underwriter's discount, agent's commission or dealer's purchase price will
be set forth in, or may be calculated from the information set forth in, the
Prospectus Supplement, and the net proceeds to the Company from such offering
will be the public offering price of the Securities less such discount, in the
case of an offering through an underwriter, or the purchase price of the
Securities less such commission, in the case of an offering through an agent,
and less, in each case, the other expenses of the Company associated with the
issuance and distribution of the Securities. See "Plan of Distribution."
---------------------
Prior to issuance there will have been no market for the Debt Securities,
and there can be no assurance that a secondary market for any such Debt
Securities will develop. This Prospectus may not be used to consummate sales of
any Debt Securities unless accompanied by the Prospectus Supplement.
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The date of this Prospectus is April 21, 1997.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy statements
and other information filed by the Company may be inspected and copied at the
public reference facilities maintained by the Commission at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549, and at the Commission's Regional
Offices located at Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511 and Seven World Trade Center, New York, New
York 10048. Copies of such materials can be obtained upon written request from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. In addition, such materials may
also be inspected and copied at the offices of the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005, on which exchange one or more
of the Company's securities are listed. Copies of reports, proxy statements and
other information electronically filed with the Commission by the Company may be
inspected by accessing the Commission's World Wide Web site at
http://www.sec.gov.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is hereby made to the Registration Statement. Such
additional information may be obtained from the Commission's principal office in
Washington, D.C. Statements contained in this Prospectus as to the contents of
any contract or other document referred to herein or therein are not necessarily
complete, and in each instance reference is made to the copy of such contract or
other document filed as an exhibit to the Registration Statement or such other
document. A copy of the Registration Statement and the exhibits and schedules
thereto may be examined without charge at the Commission's principal offices at
450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and copies of such
materials can be obtained from the Public Reference Section of the Commission at
prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File No.
1-8598) pursuant to the Exchange Act are incorporated herein by reference: (i)
Annual Report on Form 10-K for the year ended December 31, 1996, (ii) Current
Report on Form 8-K dated February 28, 1997, and (iii) all documents filed by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the termination of the
offering of the Securities.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of any such
person, a copy of any or all of the documents which are incorporated herein by
reference, other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents). Requests should be
directed to the Public Affairs Department, A. H. Belo Corporation, P.O. Box
655237, Dallas, Texas 75265-5237, telephone: (214) 977-6606.
Any statement contained in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified shall not be deemed to
constitute a part of this Prospectus except as so modified, and any statement so
superseded shall not be deemed to constitute part of this Prospectus.
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THE COMPANY
A. H. Belo Corporation's history dates back to 1842 with the publication of
the Daily News in Galveston, Texas. Today, the Company is the oldest
continuously operating business in the state of Texas and one of the nation's
largest media companies with a diversified group of television broadcasting,
newspaper publishing, cable network and electronic media assets.
The Company's Broadcast Division includes 16 network-affiliated television
stations with an audience reach of 13.5 percent of U.S. television households.
The stations are geographically diverse, with ownership weighted in the
Southwest and the Pacific Northwest. Network affiliations are almost entirely
balanced among the ABC, CBS and NBC networks, and include two FOX stations. The
Company also manages four additional television stations through local marketing
agreements and holds controlling interests in two television cable networks: the
Television Food Network and America's Health Network. In addition, through its
subsidiary Belo Productions, Inc., the Company produces original programming for
network and cable distribution.
The Company's Publishing Division is led by The Dallas Morning News, which
has the country's eighth largest Sunday and ninth largest daily circulation. In
1996, The Dallas Morning News ranked first in full run advertising for the
fourth consecutive year. The Company also owns the Providence Journal-Bulletin
in Providence, Rhode Island; the Owensboro Messenger-Inquirer in Owensboro,
Kentucky; the Bryan-College Station Eagle in Bryan-College Station, Texas; the
Arlington Morning News in Arlington, Texas; and The Gleaner in Henderson,
Kentucky. Both The Dallas Morning News and the Providence Journal-Bulletin have
been recognized for their journalistic excellence with numerous local and
national awards including six Pulitzer Prizes at The Dallas Morning News and
four at the Providence Journal-Bulletin.
The following table sets forth information for each of the Company's
television stations and their markets:
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MARKET TELEVISION YEAR NETWORK
MARKET RANK(1) STATION ACQUIRED AFFILIATION
------ ------- ---------- -------- -----------
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Dallas-Fort Worth................................... 8 WFAA 1950 ABC
Houston............................................. 11 KHOU 1984 CBS
Seattle-Tacoma(2)................................... 12 KING 1997 NBC
Sacramento.......................................... 20 KXTV 1984 ABC
St. Louis(2)........................................ 21 KMOV 1997 CBS
Portland............................................ 24 KGW 1997 NBC
Charlotte........................................... 28 WCNC 1997 NBC
Hampton-Norfolk..................................... 40 WVEC 1984 ABC
New Orleans......................................... 41 WWL 1994 CBS
Albuquerque......................................... 48 KASA 1997 FOX
Louisville.......................................... 50 WHAS 1997 ABC
Tulsa............................................... 58 KOTV 1984 CBS
Honolulu............................................ 69 KHNL 1997 NBC
Spokane............................................. 73 KREM 1997 CBS
Tucson.............................................. 78 KMSB 1997 FOX
Boise............................................... 127 KTVB 1997 NBC
</TABLE>
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(1) Market rank is based on the relative size of the television market or
Designated Market Area ("DMA") among the 211 generally recognized DMAs in
the United States, based on November 1996 Nielsen estimates.
(2) As of the date of this Prospectus, the Company also owns KIRO-TV in Seattle,
Washington which it acquired in 1995. On February 20, 1997, the Company
announced an agreement among multiple parties whereby, through an exchange
of assets, it will exchange KIRO for CBS affiliate KMOV-TV in St. Louis,
Missouri. The exchange is subject to obtaining customary regulatory
approvals.
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The Company is incorporated in the State of Delaware. The executive offices
of the Company are located at 400 South Record Street in Dallas, Texas 75202.
Its telephone number is (214) 977-6606. Unless otherwise specified or the
context otherwise requires, references in this Prospectus to the "Company" shall
include the Company and its subsidiaries.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company. The ratios were derived from the audited consolidated financial
statements of the Company for the years ended December 31, 1992, 1993, 1994,
1995 and 1996.
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YEAR ENDED DECEMBER 31,
------------------------------------
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges.............. 3.30 4.92 7.23 4.43 5.96
</TABLE>
For purposes of computing the foregoing ratios: (i) Earnings consist of
income from continuing operations before cumulative effects of accounting
changes plus income tax expense plus Fixed Charges (excluding capitalized
interest); and (ii) Fixed Charges consist of interest, whether expensed or
capitalized, and the portion of rental expenses estimated to represent an
interest component.
USE OF PROCEEDS
The Company expects to add substantially all of the net proceeds from the
sale of the Securities to its funds to be used for general corporate purposes,
including repayment of long-term and short-term debt, capital expenditures,
working capital, securities repurchase programs and the financing of
acquisitions. Funds not required immediately may be invested in short-term
marketable securities.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities will be issued under an Indenture, as supplemented from
time to time in accordance with its terms (the "Indenture"), to be entered into
between the Company and a trustee to be appointed (the "Trustee"). The following
brief summary of the Indenture and the Debt Securities is subject to the
detailed provisions of the Indenture, a copy of which is an exhibit to the
Registration Statement. Wherever references are made to particular provisions of
the Indenture, such provisions are incorporated by reference as a part of the
statements made herein and such statements are qualified in their entirety by
such reference. Certain defined terms in the Indenture are capitalized herein.
Italicized references appearing in parenthesis are to section numbers of the
Indenture. As used in this "Description of the Debt Securities," the "Company"
refers to A. H. Belo Corporation and does not include its subsidiaries.
The Indenture does not limit the amount of Debt Securities that may be
issued thereunder. It provides that Debt Securities may be issued from time to
time in series. The Debt Securities will be unsecured obligations of the Company
and will rank pari passu with all other unsecured and unsubordinated
indebtedness of the Company. Reference is made to the Prospectus Supplement for
a description of the following terms of the Debt Securities in respect of which
this Prospectus is being delivered: (i) the title of such Debt Securities; (ii)
the limit, if any, upon the aggregate principal amount of such Debt Securities;
(iii) the dates on which or periods during which such Debt Securities may be
issued and the date or dates on which the principal of (and premium, if any, on)
such Debt Securities will be payable; (iv) the rate or rates, if any, 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
dates on which such interest will be payable; and the regular record dates for
the interest payable on such interest payment dates; (v) the obligation, if any,
of the Company to redeem, repay or purchase such Debt Securities pursuant to any
sinking fund or analogous provisions or at
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the option of a holder and the periods within which or the dates on which, the
prices at which and the terms and conditions upon which such Debt Securities
will be redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation; (vi) the periods within which or the dates on which, the prices, if
any, at which and the terms and conditions upon which such Debt Securities may
be redeemed, in whole or in part, at the option of the Company; (vii) if other
than denominations of $1,000 and any integral multiple thereof, the
denominations in which such Debt Securities will be issuable; (viii) whether
such Debt Securities are to be issued at less than the principal amount thereof
and the amount of discount with which such Debt Securities will be issued; (ix)
provisions, if any, for the defeasance of such Debt Securities; (x) if other
than United States dollars, the currency or composite currency in which such
Debt Securities are to be denominated, or in which payment of the principal of
(and premium, if any) and interest on such Debt Securities will be made and the
circumstances, if any, when such currency of payment may be changed; (xi) if the
principal of (and premium, if any) or interest on such Debt Securities are to be
payable, at the election of the Company or a holder, in a currency or composite
currency other than that in which such Debt Securities are denominated or stated
to be payable, the periods within which, and the terms and conditions upon
which, such election may be made and the time and the manner of determining the
exchange rate between the currency or composite currency in which such Debt
Securities are denominated or stated to be payable and the currency in which
such Debt Securities are to be paid pursuant to such election; (xii) if the
amount of payments of principal of (and premium, if any) or interest on the Debt
Securities may be determined with reference to an index including, but not
limited to an index based on a currency or currencies other than that in which
such Debt Securities are stated to be payable, the manner in which such amounts
shall be determined; (xiii) whether such Debt Securities will be issued in the
form of one or more Global Securities and, if so, the identity of the depository
for such Global Securities; (xiv) any additions to or changes in the Events of
Default or covenants relating solely to such Debt Securities or any Events of
Default or covenants generally applicable to Debt Securities which are not to
apply to the particular series of Debt Securities in respect of which the
Prospectus Supplement is being delivered; (xv) if the Company will pay
additional amounts on any of the Debt Securities of any series to any Holder who
is a United States Alien, in respect of any tax or assessment withheld, under
what circumstances and with what procedures the Company will pay such amounts;
(xvi) any terms applicable to original issue discount, if any, including the
rate or rates at which such original issue discount, if any, shall accrue; and
(xvii) any other terms of such Debt Securities not inconsistent with the
provisions of the Indenture. (Section 3.1) Unless otherwise indicated in the
Prospectus Supplement, the Indenture does not afford the holder of any series of
Debt Securities the right to tender such Debt Securities to the Company for
repurchase, or provide for any increase in the rate or rates of interest per
annum at which such Debt Securities will bear interest, in the event the Company
should become involved in a highly leveraged transaction.
The Debt Securities may be issued under the Indenture bearing no interest
or interest at a rate below the prevailing market rate at the time of issuance,
to be offered and sold at a discount below their stated principal amount.
Federal income tax consequences and other special considerations applicable to
any such discounted Debt Securities or to other Debt Securities offered and sold
at par which are treated as having been issued at a discount for federal income
tax purposes will be described in the Prospectus Supplement relating thereto.
A substantial portion of the assets of the Company is held by subsidiaries.
The Company's right and the rights of its creditors, including the holders of
Debt Securities, to participate in the assets of any subsidiary upon its
liquidation or recapitalization would be subject to the prior claims of such
subsidiary's creditors, except to the extent that the Company may itself be a
creditor with recognized claims against such subsidiary. There is no restriction
in the Indenture against subsidiaries of the Company incurring unsecured
indebtedness.
Unless otherwise described in the Prospectus Supplement, the Debt
Securities will be issued only in fully registered form without coupons, in
denominations of $1,000 and multiples of $1,000, and will be payable only in
United States dollars. (Section 3.2) In addition, all or a portion of the Debt
Securities of any series may be issued as permanent registered Global Securities
which will be exchangeable for definitive Debt Securities only under certain
conditions. (Section 2.3) The Prospectus Supplement indicates the denominations
to be issued, the procedures for payment of interest and principal thereon, and
other matters. No service charge will be made for any registration of transfer
or exchange of the Debt Securities, but the Company may, in certain instances,
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. (Section 3.5)
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The Company shall deliver Debt Securities of any series, duly executed by
the Company, to the Trustee for authentication, together with an order for the
authentication and delivery of such Debt Securities. The Trustee, in accordance
with such order, shall authenticate and deliver such Debt Securities. No Debt
Securities of any series shall be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose unless there appears thereon a
certificate of authentication substantially in the form provided for in the
Indenture and manually executed by the Trustee or an authenticating agent duly
appointed by the Trustee. Such certificate shall be conclusive evidence, and the
only evidence, that such Debt Securities have been duly authenticated and
delivered under, and are entitled to the benefits of, the Indenture. (Section
3.3)
GLOBAL SECURITIES
The Debt Securities of a particular series may be issued in the form of one
or more Global Securities which will be deposited with a depository (the
"Depositary"), or its nominee, each of which will be identified in the
Prospectus Supplement relating to such series. Unless and until exchanged, in
whole or in part, for Debt Securities in definitive registered form, a Global
Security may not be transferred except as a whole by the Depositary for such
Global Security to a nominee of such Depositary, by a nominee of such Depositary
to such Depositary or another nominee of such Depositary or by such Depositary
or any such nominee to a successor of such Depositary or a nominee of such
successor. (Section 2.3) The specific terms of the depository arrangement with
respect to any portion of a particular series of Debt Securities to be
represented by a Global Security will be described in the Prospectus Supplement
relating to such series. The Company anticipates that the following provisions
will apply to all depository arrangements.
Upon the issuance of a Global Security, the Depositary therefor or its
nominee will credit, on its book entry and registration system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of such persons having accounts with such Depositary
("participants") as shall be designated by the underwriters or agents
participating in the distribution of such Debt Securities or by the Company if
such Debt Securities are offered and sold directly by the Company. Ownership of
beneficial interests in a Global Security will be limited to participants or
persons that may hold beneficial interests through participants. Ownership of
beneficial interests in a Global Security will be shown on, and the transfer of
such ownership will be effected only through, records maintained by the
Depositary therefor or its nominee (with respect to beneficial interests of
participants) or by participants or persons that hold through participants (with
respect to interests of persons other than participants). The laws of some
states require certain purchasers of securities to take physical delivery
thereof in definitive form. Such depository arrangements and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security or its nominee is the
registered owner thereof, such Depositary or such nominee, as the case may be,
will be considered the sole owner or holder of the Debt Securities represented
by such Global Security for all purposes under the Indenture. Except as provided
below, owners of beneficial interests in a Global Security will not be entitled
to have Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in definitive form and will not be
considered the owners or holders thereof under the Indenture for any other
purpose.
Principal, premium, if any, and interest payments on a Global Security
registered in the name of a Depositary or its nominee will be made to such
Depositary or nominee, as the case may be, as the registered owner of such
Global Security. None of the Company, the Trustee or any paying agent for Debt
Securities of the series represented by such Global Security will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial interests in such Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
interests.
The Company expects that the Depositary for a Global Security or its
nominee, upon receipt of any payment of principal, premium or interest, will
immediately credit participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of such Global
Security as shown on the records of such Depositary or its nominee. The Company
also expects that payments by participants to owners of beneficial interests in
such Global Security held through such participants will be
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governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers registered in "street name,"
and will be the responsibility of such participants.
If the Depositary for a Global Security representing Debt Securities of a
particular series is at any time unwilling or unable to continue as Depositary
and a successor Depositary is not appointed by the Company within 90 days, the
Company will issue Debt Securities of such series in definitive form in exchange
for such Global Security. In addition, the Company may at any time and in its
sole discretion determine not to have the Debt Securities of a particular series
represented by one or more Global Securities and, in such event, will issue Debt
Securities of such series in definitive form in exchange for all of the Global
Securities representing Debt Securities of such series.
CERTAIN COVENANTS OF THE COMPANY
Limitation on Indebtedness Secured by a Mortgage. The Indenture provides
that neither the Company nor any Restricted Subsidiary will create, assume,
guarantee or suffer to exist any Indebtedness secured by any mortgage, pledge,
lien, security interest, conditional sale or other title retention agreement or
other similar encumbrance ("Mortgage") on any assets of the Company or a
Restricted Subsidiary unless the Company secures or causes such Restricted
Subsidiary to secure the Debt Securities equally and ratably with, or prior to,
such secured Indebtedness. This restriction will not apply to Indebtedness
secured by (i) Mortgages on the property of any corporation which Mortgages
existed at the time such corporation became a Restricted Subsidiary; (ii)
Mortgages in favor of the Company or a Restricted Subsidiary; (iii) Mortgages on
property of the Company or a Restricted Subsidiary in favor of the United States
of America or any state or political subdivision thereof, or in favor of any
other country or any political subdivision thereof, to secure payment pursuant
to any contract or statute or to secure any indebtedness incurred for the
purpose of financing all or part of the purchase price or the cost of
construction or improvement of the property subject to such Mortgages; (iv)
Mortgages on any property subsequently acquired by the Company or any Restricted
Subsidiary, contemporaneously with such acquisition or within 120 days
thereafter, to secure or provide for the payment of any part of the purchase
price, construction or improvement of such property, or Mortgages assumed by the
Company or any Restricted Subsidiary upon any property subsequently acquired by
the Company or any Restricted Subsidiary which were existing at the time of such
acquisition, provided that the amount of any Indebtedness secured by any such
Mortgage created or assumed does not exceed the cost to the Company or
Restricted Subsidiary, as the case may be, of the property covered by such
Mortgage; (v) Mortgages existing at the date of issuance of the first series of
Debt Securities under the Indenture; (vi) Mortgages representing the extension,
renewal or refunding of any Mortgage referred to in the foregoing clauses (i)
through (v), inclusive; and (vii) any other Mortgage, other than Mortgages
referred to in the foregoing clauses (i) through (vi), inclusive, so long as the
aggregate of all Indebtedness secured by Mortgages pursuant to this clause (vii)
and the aggregate Value of the Sale and Lease-Back Transactions in existence at
that time (not including those in connection with which the Company has
voluntarily retired funded Indebtedness as provided in the Indenture) does not
exceed 15% of Consolidated Net Tangible Assets. (Section 10.7)
Limitation on Sale and Lease-Back Transactions. The Indenture provides that
neither the Company nor any Restricted Subsidiary will enter into any Sale and
Lease-Back Transaction with respect to any Principal Property unless either (i)
the Company or such Restricted Subsidiary would be entitled, pursuant to the
foregoing covenant relating to "Limitation on Indebtedness Secured by a
Mortgage," to create, assume, guarantee or suffer Indebtedness in a principal
amount equal to or exceeding the Value of such Sale and Lease-Back Transaction
secured by a Mortgage on the property to be leased without equally and ratably
securing the Debt Securities or (ii) the Company or such Restricted Subsidiary,
within four months after the effective date of such transaction, applies an
amount equal to the greater of (x) the net proceeds of the sale of the property
subject to the Sale and Lease-Back Transaction and (y) the Value of such Sale
and Lease-Back Transaction, to the voluntary retirement of the Debt Securities
or other unsubordinated funded Indebtedness of the Company or such Restricted
Subsidiary. (Section 10.8)
Certain Definitions. "Consolidated Net Tangible Assets" is defined in the
Indenture to mean total consolidated assets of the Company and its Restricted
Subsidiaries, less (i) current liabilities of the Company
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and its Restricted Subsidiaries, and (ii) the net book amount of all intangible
assets of the Company and its Restricted Subsidiaries. (Section 10.7)
"Consolidated Subsidiary" is defined in the Indenture to mean a Subsidiary
the accounts of which are consolidated with those of the Company for public
financial reporting purposes. (Section 1.1)
"Indebtedness" is defined in the Indenture to mean (i) long-term
liabilities representing borrowed money or purchase money obligations as shown
on the liability side of a balance sheet (other than liabilities evidenced by
obligations under leases and contracts payable for broadcast rights), (ii)
indebtedness secured by any Mortgage existing on property owned subject to such
Mortgage, whether or not such secured indebtedness has been assumed and (iii)
contingent obligations in respect of, or to purchase or otherwise acquire, any
such indebtedness of others described in the foregoing clauses (i) or (ii)
above, including guarantees and endorsements (other than for purposes of
collection in the ordinary course of business of any such indebtedness).
(Section 10.7)
"Principal Property" is defined in the Indenture to mean any manufacturing
or printing plant, distribution center, warehouse, office building, television
station or transmission facility owned by the Company or any Restricted
Subsidiary or any other property or right owned by or granted to the Company or
any Restricted Subsidiary and used or held for use in the newspaper or
television business conducted by the Company or any Restricted Subsidiary,
except for any such property or right which, in the opinion of the Board of
Directors of the Company as set forth in a Board Resolution adopted in good
faith, is not material to the total business conducted by the Company and its
Restricted Subsidiaries considered as one enterprise. (Section 1.1)
"Restricted Subsidiary" is defined in the Indenture to mean each Subsidiary
of the Company as of the date of the Indenture and each Subsidiary thereafter
created or acquired, unless expressly excluded by resolution of the Board of
Directors of the Company before, or within 120 days following, such creation or
acquisition. (Section 10.7)
"Sale and Lease-Back Transaction" is defined in the Indenture as the
leasing by the Company or a Subsidiary for a period of more than three years of
any Principal Property which has been sold or is to be sold or transferred by
the Company or any such Subsidiary to any party (other than the Company or a
Subsidiary). (Section 10.8)
"Subsidiary" is defined in the Indenture to mean a corporation more than
50% of the outstanding voting stock of which is owned, directly or indirectly,
by the Company or by one or more other Subsidiaries or by the Company and one or
more other Subsidiaries. For the purposes of this definition, "voting stock"
means stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency. (Section 1.1)
"Value" is defined in the Indenture to mean, with respect to any particular
Sale and Lease-Back Transaction, as of any particular time, the amount equal to
the greater of (i) the net proceeds of the sale or transfer of the property
leased pursuant to such Sale and Lease-Back Transaction or (ii) the fair value
in the opinion of the Board of Directors of the Company of such property at the
time of the Company's entering into such Sale and Lease-Back Transaction,
subject to adjustment at any particular time for the length of the remaining
initial lease term. (Section 10.8)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture provides that the Company may not consolidate with or merge
into any other corporation, or convey, transfer or lease its properties and
assets substantially as an entirety to any other party, unless, among other
things, (i) the corporation formed by such consolidation or into which the
Company is merged or the party which acquires by conveyance or transfer, or
which leases the properties and assets of the Company substantially as an
entirety, is organized and existing under the laws of the United States, any
State thereof or the District of Columbia and expressly assumes the Company's
obligations on the Debt Securities and under the Indenture by means of an
indenture supplemental to the Indenture; and (ii) 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 8.1)
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EVENTS OF DEFAULT, WAIVER AND NOTICE
With respect to the Debt Securities of any series, an Event of Default is
defined in the Indenture as being (i) default for 30 days in payment of any
interest upon the Debt Securities of such series; (ii) default in payment of the
principal of or premium, if any, on the Debt Securities of such series when due
either at maturity or upon acceleration, redemption or otherwise; (iii) default
by the Company in the performance of any other of the covenants or warranties in
the Indenture for the benefit of such series applicable to the Company which
shall not have been remedied for a period of 60 days after Notice of Default;
(iv) the failure to pay when due any indebtedness for money borrowed (including
indebtedness under Debt Securities other than that series) with a principal
amount then outstanding in excess of $20,000,000 under any mortgage, indenture
or instrument under which any such indebtedness is issued or secured (including
the Indenture), or any other default which results in the acceleration of
maturity of such indebtedness, unless such indebtedness or acceleration shall
have been discharged or annulled within 10 days after due notice by the Trustee
or by Holders of at least 10% in principal amount of the Outstanding Debt
Securities of that series; and (v) certain events of bankruptcy, insolvency or
reorganization of the Company or any Significant Subsidiary. (Section 5.1)
Within 90 days after the occurrence of any default under the Indenture with
respect to Debt Securities of any series, the Trustee is required to notify the
Holders of Debt Securities of any default unless, in the case of any default
other than a default in the payment of principal of or premium, if any, or
interest on any Debt Securities, a trust committee of the Board of Directors or
Responsible Officers of the Trustee in good faith considers it in the interest
of the Holders of Debt Securities not to do so. (Section 6.2)
"Significant Subsidiary" is defined in the Indenture to mean any Subsidiary
(i) which, as of the close of the fiscal year of the Company immediately
preceding the date of determination, contributed more than 10% of the
consolidated net operating revenues of the Company and its Consolidated
Subsidiaries for such year or (ii) the total assets of which as of the close of
such immediately preceding fiscal year exceeded 10% of the Consolidated Net
Tangible Assets of the Company and its Consolidated Subsidiaries. (Section 5.1)
The Indenture provides that if an Event of Default, other than an Event of
Default as described in clause (v) in the above paragraph with respect to Debt
Securities of any series shall have occurred and be continuing, either the
Trustee or the Holders of at least 25% in aggregate principal amount of the Debt
Securities of that series then outstanding may declare the entire principal and
accrued interest of all Debt Securities of such series (or, if any of the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Debt Securities as may be specified by the terms
thereof) to be due and payable immediately. If an Event of Default described in
clause (v) in the above paragraph with respect to any series of Debt Securities
Outstanding under the Indenture occurs, the principal amount (or, if any of the
Debt Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Debt Securities as may be specified by
the terms thereof) shall automatically, and without any declaration or other
action on the part of the Trustee or any Holder, become immediately due and
payable. Any time after acceleration with respect to the Debt Securities of any
series has been made, but before a judgment or decree for the payment of money
based on such acceleration has been obtained by the Trustee, the Holders of a
majority in principal amount of the Outstanding Debt Securities of that series,
may, under certain circumstances, rescind and annul such acceleration. The
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series may waive any past defaults under the Indenture with respect to the
Debt Securities of such series, except defaults in payment of principal of or
premium, if any (other than by a declaration of acceleration), or interest on
the Debt Securities or provisions of such series that may not be modified or
amended without the consent of the Holders of all Outstanding Debt Securities of
such series. (Sections 5.2 and 5.13)
The Company will be required to furnish to the Trustee annually a statement
as to the performance by the Company of its covenants and agreements under the
Indenture. (Section 10.9)
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Subject to certain conditions set forth in the Indenture, the Holders of a
majority in principal amount of the then Outstanding Debt Securities of any
series with respect to which an Event of Default has occurred shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee under the Indenture in respect of such series.
No Holder of any Debt Securities shall have any right to cause the Trustee to
institute any proceedings, judicial or otherwise, with respect to the Indenture
or any remedy thereunder unless, among other things, the Holder or Holders of
Debt Securities shall have offered to the Trustee reasonable indemnity against
costs, expenses and liabilities relating to such proceedings. (Sections 5.12 and
5.7)
The Indenture provides that, in determining whether the Holders of the
requisite aggregate principal amount of the Outstanding Debt Securities have
given, made or taken any request, demand, authorization, direction, notice,
consent, waiver or other action thereunder as of any date, (a) the principal
amount of an Original Issue Discount Security which shall be deemed to be
Outstanding shall be the amount of the principal thereof which would be due and
payable as of such date upon acceleration of the Maturity thereof to such date,
(b) if, as of such date, the principal amount payable at the Stated Maturity of
a Debt Security is not determinable, the principal amount of such Debt Security
which shall be deemed to be Outstanding shall be the amount as established in or
pursuant to a Board Resolution and set forth, or determined in the manner
provided, in an Officers' Certificate, or established in one or more
supplemental indentures, prior to the issuance of such Debt Securities, (c) the
principal amount of a Debt Security denominated in one or more foreign
currencies or currency units which shall be deemed to be Outstanding shall be
the U.S. dollar equivalent, determined as of such date in the manner as
described in clause (b) above, of the principal amount of such Debt Security
(or, in the case of a Debt Security described in clause (a) or (b) above, of the
amount determined as provided in such clause), and (d) Debt Securities owned by
the Company or any other obligor upon the Debt Securities or any Affiliate of
the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Debt Securities which the Trustee knows to
be so owned shall be so disregarded. Debt Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Debt Securities and that the pledgee is not the Company or any other
obligor upon the Debt Securities or any Affiliate of the Company or of such
other obligor. (Section 1.1)
MODIFICATION OF THE INDENTURE
The Indenture provides that the Company and the Trustee may, without the
consent of the Holders, modify or amend the Indenture in order to (i) evidence
the succession of another corporation to the Company and the assumption by any
such successor corporation of the covenants of the Company in the Indenture and
in the Debt Securities; (ii) add to the covenants, agreements and obligations of
the Company for the benefit of the Holders of all or any series of Debt
Securities; (iii) add any additional Events of Default to the Indenture; (iv)
add to or change any of the provisions of the Indenture necessary to permit the
issuance of Debt Securities in bearer form, registrable as to principal, and
with or without interest coupons; (v) add to, change or eliminate any of the
provisions of the Indenture, in respect of one or more series of Debt
Securities, provided that any such addition, change or elimination may not apply
to any Debt Security of any series created prior to such addition, change or
elimination; (vi) establish the form or terms of Debt Securities of any series
as permitted under the Indenture; (vii) evidence and provide for the acceptance
of appointment under the Indenture by a successor Trustee with respect to the
Debt Securities of one or more series; or (viii) cure any ambiguity, or correct
or supplement any provision of the Indenture which may be inconsistent with any
other provision of the Indenture, provided such action does not adversely affect
the interest of the Holders of Debt Securities of any series.
With respect to the Debt Securities of any series, modification or
amendment of the Indenture may be made by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the Debt
Securities of such series, except that no such modification or amendment may,
without the consent of the Holders of all then Outstanding Debt Securities of
such series (i) change the due date of
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the principal of, or any installment of principal of or interest on, any Debt
Securities of such series; (ii) reduce the principal amount of, or any
installment of principal or interest or rate of interest on, or any premium
payable on redemption of any Debt Securities of such series; (iii) reduce the
principal amount of any Debt Securities of such series payable upon acceleration
of the maturity thereof; (iv) change the place or the currency of payment of
principal of, or any premium or interest on, any Debt Securities of such series;
(v) impair the right to institute suit for the enforcement of any payment on or
with respect to any Debt Securities of such series on or after the due date
thereof (or, in the case of redemption, on or after the redemption date
thereof); (vi) reduce the percentage in principal amount of Debt Securities of
such series then outstanding, the consent of whose holders is required for
modification or amendment of the Indenture or for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults; or (vii)
modify certain provisions of the Indenture regarding the amendment or
modification of, or waiver with respect to, any provision of the Indenture or
the Debt Securities. (Section 9.2)
DISCHARGE OF THE INDENTURE
The Indenture, with respect to the Debt Securities of any series (if all
series issued under the Indenture are not to be affected), shall upon the
written request or order of the Company cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Debt
Securities therein expressly provided for), when (i) either (A) all Debt
Securities theretofore authenticated and delivered (other than (1) Debt
Securities which have been destroyed, lost or stolen and which have been
replaced or paid and (2) Debt Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust) have been
delivered to the Trustee for cancellation or (B) all such Debt Securities not
theretofore delivered to the Trustee for cancellation (1) have become due and
payable, (2) will become due and payable at their stated maturity within one
year or (3) if the Debt Securities of such series are denominated and payable
only in United States dollars and such Debt Securities are to be called for
redemption within one year, and the Company in the case of (1), (2) or (3)
above, has deposited or caused to be deposited with the Trustee an amount in
United States dollars sufficient to pay and discharge the entire indebtedness on
such Debt Securities not theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest to the date of such deposit (in
the case of Debt Securities which have become due and payable) or to the stated
maturity or any redemption date, as the case may be; (ii) the Company has paid
or caused to be paid all other sums payable under the Indenture by the Company;
and (iii) the Company has delivered to the Trustee an officers' certificate and
an opinion of counsel, each stating that all conditions precedent provided for
in the Indenture relating to the satisfaction and discharge of the Indenture
have been complied with. (Section 4.1)
DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise specified in the Prospectus Supplement, the following
provisions relating to defeasance and discharge of indebtedness, or relating to
defeasance of certain covenants in the Indenture, will apply to the Debt
Securities of any series, or to any specified part of a series. (Section 13.1)
Defeasance and Discharge. The Indenture provides that the Company will be
discharged from all its obligations with respect to such Debt Securities (except
for certain obligations to exchange or register the transfer of Debt Securities,
to replace stolen, lost or mutilated Debt Securities, to maintain paying
agencies and to hold moneys for payment in trust) upon the deposit in trust for
the benefit of the Holders of such Debt Securities of money or U.S. Government
Obligations, or both, which, through the payment of principal and interest in
respect thereof in accordance with their terms, will provide money in an amount
sufficient to pay any installment of principal of and any premium and interest
on and any mandatory sinking fund payments in respect of such Debt Securities on
the respective Stated Maturities in accordance with the terms of the Indenture
and such Debt Securities. Such defeasance or discharge may occur only if, among
other things, the Company has delivered to the Trustee an Opinion of Counsel to
the effect that the Company has received from, or there has been published by,
the United States Internal Revenue Service a ruling, or there has been a change
in tax law, in either case to the effect that Holders of such Debt Securities
will not recognize gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to
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federal income tax on the same amount, in the same manner and at the same times
as would have been the case if such deposit, defeasance and discharge had not
occurred. (Sections 13.1 and 13.2)
Defeasance of Certain Covenants. The Indenture provides that the Company
may omit to comply with certain restrictive covenants described under the
captions "Certain Covenants of the Company -- Limitation on Indebtedness Secured
by a Mortgage" and "Certain Covenants of the Company -- Limitation on Sale and
Leaseback Transactions" above and any that may be described in the Prospectus
Supplement, and that such omission will be deemed not to be or result in an
Event of Default, in each case with respect to such Debt Securities. In order to
do so, the Company will be required to deposit, in trust for the benefit of the
Holders of such Debt Securities, money or U.S. Government Obligations, or both,
which through the payment of principal and interest in respect thereof in
accordance with their terms, will provide money in an amount sufficient to pay
any installment of the principal of and any premium and interest on and any
mandatory sinking fund payments in respect of such Debt Securities on the
respective Stated Maturities in accordance with the terms of the Indenture and
such Debt Securities. The Company will also be required, among other things, to
deliver to the Trustee an Opinion of Counsel to the effect that Holders of such
Debt Securities will not recognize gain or loss for federal income tax purposes
as a result of such deposit and defeasance of certain obligations and will be
subject to federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit and defeasance had not
occurred. In the event the Company exercises this option with respect to any
Debt Securities and such Debt Securities are declared due and payable because of
the occurrence of any Event of Default, the amount of money and U.S. Government
Obligations so deposited in trust will be sufficient to pay amounts due on such
Debt Securities at the time of their respective Stated Maturities but may not be
sufficient to pay amounts due on such Debt Securities upon any acceleration
resulting from such Event of Default. In such case, the Company will remain
liable for such payments. (Sections 13.1 and 13.2)
THE TRUSTEE
Prior to the offering of any Debt Securities, a trustee will be appointed
by the Company to serve as Trustee under the Indenture. The Trustee may be a
depository for funds of and perform other services for and transact other
banking business with the Company in the normal course of business.
The Trustee may serve as a trustee under other indentures entered into by
the Company. Upon the occurrence of an Event of Default under the Indenture or
an event which, after notice or lapse of time or both, would become such an
Event of Default, or upon the occurrence of a default under any such other
indenture, the Trustee may be deemed to have a conflicting interest with respect
to the Debt Securities for purposes of the Trust Indenture Act and, unless the
Trustee is able to eliminate any such conflicting interest, the Trustee may be
required to resign as Trustee under the Indenture. In that event, the Company
would be required to appoint a successor Trustee for the Indenture.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York. (Section 1.12)
DESCRIPTION OF WARRANTS
The following description of the terms of the Warrants sets forth certain
general terms and provisions of the Warrants to which any Prospectus Supplement
may relate. The particular terms of the Warrants offered by any Prospectus
Supplement and the extent, if any, to which such general provisions may apply to
the Warrants so offered will be described in the Prospectus Supplement relating
to such Warrants.
GENERAL
Warrants may be offered together with any series of Debt Securities offered
by a Prospectus Supplement and if so offered will be attached to such Debt
Securities and will entitle the holder thereof to purchase
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additional Debt Securities having the same terms and interest rate as the
offered Debt Securities. Each series of Warrants will be issued under a separate
warrant agreement (a "Warrant Agreement") to be entered into between the Company
and a bank or trust company, as warrant agent (the "Warrant Agent"), all as
described in the Prospectus Supplement relating to such series of Warrants. The
Warrant Agent will act solely as the agent of the Company under the applicable
Warrant Agreement and in connection with the certificates for the Warrants (the
"Warrant Certificates") of such series, and will not assume any obligation or
relationship of agency or trust for or with any holders of such Warrant
Certificates or beneficial owners of Warrants. A copy of the form of Warrant
Agreement, including the form of Warrant Certificates, is filed as an exhibit to
this Registration Statement. The following summary of certain provisions of the
forms of Warrant Agreement and Warrant Certificates does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all the provisions of the Warrant Agreement and the Warrant Certificates.
Reference is hereby made to the Prospectus Supplement relating to the
particular series of Warrants, if any, offered thereby for the terms of such
Warrants, including, where applicable: (i) the offering price; (ii) the currency
or currencies in which such Warrants are being offered; (iii) the designation,
aggregate principal amount, currency or currencies, denominations and other
terms of the series of Debt Securities purchasable upon exercise of such
Warrants; (iv) the designation and terms of the series of Debt Securities with
which such Warrants are being offered and the number of such Warrants being
offered with each such Debt Security; (v) the date on and after which such
Warrants and the related series of Debt Securities will be transferable
separately; (vi) the principal amount of the Debt Securities purchasable upon
exercise of each such Warrant and the price at which and currency or currencies
in which such principal amount of Debt Securities may be purchased upon such
exercise; (vii) the date on which the right to exercise such Warrants shall
commence (the "Exercise Date") and the date on which such right shall expire
(the "Expiration Date"); (viii) a discussion of the material United States
Federal income tax considerations applicable to the exercise of the Warrants;
(ix) whether the Warrants represented by the Warrant Certificates will be issued
in registered or bearer form, and, if registered, where they may be transferred
and registered; (x) call provisions of such Warrants, if any; and (xi) any other
terms of such Warrants not inconsistent with the applicable Warrant Agreement.
Warrants of any series will be exchangeable into Warrants of the same
series representing in the aggregate the number of Warrants surrendered for
exchange. Warrant Certificates may be presented for exchange or transfer at the
corporate trust office of the Warrant Agent for such series of Warrants (or any
other office indicated in the Prospectus Supplement relating to such series of
Warrants). Prior to the exercise of their Warrants, holders of Warrants will not
have any of the rights of holders of the series of Debt Securities purchasable
upon such exercise, including the right to receive payments of principal of,
premium, if any, or interest, if any, on the Debt Securities purchasable upon
such exercise, or to enforce any of the covenants in the Indenture.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder thereof to purchase such principal
amount of the related series of Debt Securities at such exercise price as shall
in each case be set forth in, or be calculable as set forth in, the Prospectus
Supplement relating to such Warrant. Warrants of a series may be exercised at
the corporate trust office of the Warrant Agent for such series (or any other
office indicated in the Prospectus Supplement relating to such series) at any
time on or after the Exercise Date and prior to 5:00 P.M., New York, New York
time (unless otherwise indicated in the related Prospectus Supplement), on the
Expiration Date set forth in the Prospectus Supplement relating to such series
of Warrants. After the close of business on the Expiration Date relating to such
series of Warrants, unexercised Warrants of such series will be void.
Warrants of a series may be exercised by delivery to the appropriate
Warrant Agent of payment, as provided in the Prospectus Supplement relating to
such series of Warrants, of the consideration required to purchase the principal
amount of the series of Debt Securities purchasable upon such exercise, together
with certain information as set forth on or incorporated in the Warrant
Certificate evidencing such Warrants. Such Warrants will be deemed to have been
exercised upon receipt of the exercise price, subject to the receipt of the
Warrant Certificate evidencing such Warrants within five business days. Upon
receipt of such payment and
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such Warrant Certificate, properly completed and duly executed, at the corporate
trust office of the appropriate Warrant Agent (or any other office indicated in
the Prospectus Supplement relating to such series of Warrants), the Company
will, as soon as practicable, issue and deliver the principal amount of the
series of Debt Securities purchasable upon such exercise. If fewer than all of
the Warrants represented by a Warrant Certificate are exercised, a new Warrant
Certificate will be issued and delivered for the remaining amounts of Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Securities in any of three ways: (i) to or through
underwriters or dealers, (ii) through agents or (iii) directly to one or more
purchasers. With respect to each series of Securities being offered hereby, the
terms of the offering of the Securities of such series, including the name or
names of any underwriters, dealers or agents, the purchase price of such
Securities and the proceeds to the Company from such sale, any underwriting
discounts, selling commissions and other items constituting underwriters',
dealers' or agents' compensation, any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers or agents, and
any securities exchanges on which the Securities of such series may be listed,
will be set forth in, or may be calculated from the information set forth in,
the Prospectus Supplement. Only underwriters so named in the Prospectus
Supplement will be deemed to be underwriters in connection with the Securities
offered thereby.
If underwriters are used to sell any of the Securities, the 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 Securities may be offered to the public either 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 Securities will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all the Securities offered by the Prospectus Supplement if any of such
Securities are purchased. In connection with the sale of Securities,
underwriters may be deemed to have received compensation from the Company in the
form of underwriting discounts or commissions and may also receive commissions
from purchasers of Securities for whom they may act as agent. Underwriters may
sell Securities to or through dealers, and such dealers may receive compensation
in the form of discounts, concessions or commissions from the underwriters
and/or commissions (which may be changed from time to time) from the purchasers
for whom they may act as agent. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
Securities may also be sold directly by the Company or through agents
(which may also act as principals) designated by the Company from time to time.
Any agent involved in the offer or sale of the 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, or may be calculated from the
information 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. In the case of sales made directly by
the Company, no commission will be payable.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase 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 future date specified in the
Prospectus Supplement. Such contracts will be subject to the 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, or to contribution with respect
to payments that 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 or its affiliates in the ordinary
course of business.
14
<PAGE> 16
The Securities may or may not be listed on a national securities exchange
or a foreign securities exchange. The Securities will be a new issue of
securities with no established trading market. In the event that the Securities
of any series are not listed on a national securities exchange, certain
broker-dealers may make a market in the Securities of such series, but will not
be obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given that any broker-dealer will make a market in
the Securities or as to the liquidity of the trading market for the Securities.
The Prospectus Supplement with respect to the Securities of any series will
state, if known, whether or not any broker-dealer intends to make a market in
such Securities. If no such determination has been made, the Prospectus
Supplement will so state.
Certain of the underwriters, dealers and/or agents and their associates may
be customers of, engage in transactions with and perform services for the
Company, including its subsidiaries, in the ordinary course of business.
LEGAL MATTERS
Certain legal matters relating to the Securities will be passed upon for
the Company by Locke Purnell Rain Harrell (A Professional Corporation)("Locke
Purnell"), Dallas, Texas. Attorneys employed by Locke Purnell from time to time
own shares of Common Stock in the Company. Certain legal matters relating to the
Securities will be passed upon for any underwriters, dealers or agents by
Gibson, Dunn & Crutcher LLP, New York, New York. Gibson, Dunn & Crutcher LLP
provides legal services to the Company from time to time.
EXPERTS
The Consolidated Financial Statements of the Company appearing in the
Company's Annual Report (Form 10-K) for the year ended December 31, 1996 have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
15
<PAGE> 17
======================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN
THE SECURITIES DESCRIBED HEREIN OR THEREIN OR AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH
SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS
OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED
OR INCORPORATED BY REFERENCE HEREIN OR THEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information.................. 2
Incorporation of Certain Documents by
Reference............................ 2
The Company............................ 3
Ratio of Earnings to Fixed Charges..... 4
Use of Proceeds........................ 4
Description of Debt Securities......... 4
Description of Warrants................ 12
Plan of Distribution................... 14
Legal Matters.......................... 15
Experts................................ 15
</TABLE>
======================================================
======================================================
$1,500,000,000
[A H BELO LOGO]
DEBT SECURITIES
AND
WARRANTS TO PURCHASE
DEBT SECURITIES
------------------------
PROSPECTUS
------------------------
======================================================
<PAGE> 18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table indicates the expenses to be incurred in connection
with the offerings described in this Registration Statement. All expenses are
estimated except the Securities and Exchange Commission registration fee.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 454,545
Rating agency fees.......................................... 350,000
Trustee's fees and expenses................................. 20,000
Blue sky fees (including counsel fees)...................... 5,000
Accounting fees............................................. 25,000
Legal services and expenses................................. 150,000
Printing and engraving fees................................. 100,000
Miscellaneous............................................... 95,455
----------
Total............................................. $1,200,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law (the "DGCL"), the
Company, as a Delaware corporation, has the power, under specified
circumstances, to indemnify its directors, officers, employees and agents in
connection with actions, suits or proceedings brought against them by a third
party or in the right of the corporation, by reason that they were or are such
directors, officers, employees or agents, against expenses and liabilities
incurred in any such action, suit or proceeding so long as they acted in good
faith and in a manner that they reasonably believed to be in, or not opposed to,
the best interests of such corporation, and with respect to any criminal action,
that they had no reasonable cause to believe their conduct was unlawful. With
respect to suits by or in the right of such corporation, however,
indemnification is generally limited to attorneys' fees and other expenses and
is not available if such person is adjudged to be liable to such corporation
unless the court determines that indemnification is appropriate. A Delaware
corporation also has the power to purchase and maintain insurance for such
persons. Article Fifteen of the Certificate of Incorporation of the Company
permits indemnification of directors and officers to the fullest extent
permitted by Section 145 of the DGCL. Reference is made to the Certificate of
Incorporation of the Company.
Section 102(b)(7) of the DGCL provides that a certificate of incorporation
may contain a provision eliminating or limiting the personal liability of a
director to the corporation or its shareholders for monetary damages for breach
of fiduciary duty as a director provided that such provisions may not eliminate
or limit the liability of a director (i) for any breach of the director's duty
of loyalty to the corporation or its shareholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 (relating to liability for unauthorized
acquisitions or redemptions of, or dividends on, capital stock) of the DGCL or
(iv) for any transaction from which the director derived an improper personal
benefit. Article Fifteen of the Company's Certificate of Incorporation contains
such a provision.
The above discussion of the Company's Certificate of Incorporation and of
Sections 102(b)(7) and 145 of the DGCL is not intended to be exhaustive and is
qualified in its entirety by such Certificate of Incorporation and statutes.
II-1
<PAGE> 19
ITEM 16. EXHIBITS.
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-3:
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
1 -- Form of proposed Distribution Agreement.
4.1 -- Form of proposed Indenture.
4.2 -- Form of proposed Debt Securities.*
4.3 -- Form of proposed Warrant Agreement.
4.4 -- Form of proposed Warrant Certificate.
5 -- Opinion of Locke Purnell Rain Harrell (A Professional
Corporation) as to legality of the securities registered
hereby.
12 -- Computation of Ratio of Earnings to Fixed Charges of the
Company.
23.1 -- Consent of Ernst & Young LLP.
23.2 -- Consent of Locke Purnell Rain Harrell (A Professional
Corporation) (set forth in its opinion filed as Exhibit
5).
24 -- Powers of attorney (set forth on the signature page(s)
hereof).
25 -- Statement of Eligibility and Qualifications on Form T-1
of Trustee under the Indenture.*
</TABLE>
- ---------------
* Such exhibit will be filed by the Registrant as an exhibit to a Current Report
on Form 8-K and incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
(a) RULE 415 OFFERING. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
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 and 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;
(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 (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
II-2
<PAGE> 20
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to section 13(a) or 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.
(c) INDEMNIFICATION. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) REGISTRATION STATEMENT PERMITTED BY RULE 430A. The undersigned
registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(e) QUALIFICATION OF TRUST INDENTURES FOR DELAYED OFFERINGS
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of section 310 of the Trust Indenture Act ("Act") in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
The undersigned registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3.
II-3
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized in the City of Dallas, State of
Texas, on the 21st day of April, 1997.
A. H. BELO CORPORATION
By: /s/ ROBERT W. DECHERD
----------------------------------
Robert W. Decherd
Chairman of the Board, President
and
Chief Executive Officer
POWER OF ATTORNEY
The undersigned hereby constitute and appoint Robert W. Decherd, Michael J.
McCarthy and Michael D. Perry, and each of them, with full power to act without
the other and with full power of substitution and resubstitution, our true and
lawful attorneys-in-fact with full power to execute in our name and behalf in
the capacities indicated below any and all amendments (including post-effective
amendments and amendments thereto) to this Registration Statement and any
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under 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, and hereby ratify and confirm all that such
attorneys-in-fact, or any of them, or their substitutes shall lawfully do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ROBERT W. DECHERD Chairman of the Board, April 21, 1997
- ----------------------------------------------------- President and Chief Executive
Robert W. Decherd Officer
/s/ WARD L. HUEY, JR. Vice Chairman of the Board April 21, 1997
- ----------------------------------------------------- and President, Broadcast
Ward L. Huey, Jr. Division
/s/ BURL OSBORNE Director and President, April 21, 1997
- ----------------------------------------------------- Publishing Division
Burl Osborne
/s/ MICHAEL D. PERRY Senior Vice President April 21, 1997
- ----------------------------------------------------- and Chief Financial Officer
Michael D. Perry
/s/ VICKY C. TEHERANI Vice President/Controller April 21, 1997
- ----------------------------------------------------- (Principal Accounting
Vicky C. Teherani Officer)
/s/ JOHN W. BASSETT, JR. Director April 21, 1997
- -----------------------------------------------------
John W. Bassett, Jr.
</TABLE>
II-4
<PAGE> 22
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ JUDITH L. CRAVEN, M.D., M.P.H. Director April 21, 1997
- -----------------------------------------------------
Judith L. Craven, M.D., M.P.H.
/s/ ROGER A. ENRICO Director April 21, 1997
- -----------------------------------------------------
Roger A. Enrico
/s/ DEALEY D. HERNDON Director April 21, 1997
- -----------------------------------------------------
Dealey D. Herndon
/s/ LESTER A. LEVY Director April 21, 1997
- -----------------------------------------------------
Lester A. Levy
/s/ ARTURO MADRID, PH.D. Director April 21, 1997
- -----------------------------------------------------
Arturo Madrid, Ph.D.
/s/ JAMES M. MORONEY, JR. Director April 21, 1997
- -----------------------------------------------------
James M. Moroney, Jr.
/s/ HUGH G. ROBINSON Director April 21, 1997
- -----------------------------------------------------
Hugh G. Robinson
/s/ WILLIAM T. SOLOMON Director April 21, 1997
- -----------------------------------------------------
William T. Solomon
/s/ THOMAS B. WALKER, JR. Director April 21, 1997
- -----------------------------------------------------
Thomas B. Walker, Jr.
/s/ J. McDONALD WILLIAMS Director April 21, 1997
- -----------------------------------------------------
J. McDonald Williams
</TABLE>
II-5
<PAGE> 23
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
1 -- Form of proposed Distribution Agreement.
4.1 -- Form of proposed Indenture.
4.2 -- Form of proposed Debt Securities.*
4.3 -- Form of proposed Warrant Agreement.
4.4 -- Form of proposed Warrant Certificate.
5 -- Opinion of Locke Purnell Rain Harrell (A Professional
Corporation) as to legality of the securities registered
hereby.
12 -- Computation of Ratio of Earnings to Fixed Charges of the
Company.
23.1 -- Consent of Ernst & Young LLP.
23.2 -- Consent of Locke Purnell Rain Harrell (A Professional
Corporation) (set forth in its opinion filed as Exhibit
5).
24 -- Powers of attorney (set forth on the signature page(s)
hereof).
25 -- Statement of Eligibility and Qualifications on Form T-1
of Trustee under the Indenture.*
</TABLE>
- ---------------
* Such exhibit will be filed by the Registrant as an exhibit to a Current Report
on Form 8-K and incorporated herein by reference.
<PAGE> 1
EXHIBIT 1
DISTRIBUTION AGREEMENT
[ ], 1997
[Investment Banks]
Dear Ladies and Gentlemen:
A.H. Belo Corporation, a Delaware corporation (the "Company"),
confirms its agreement with each of [Investment Banks] (each an "Agent" and
collectively, the "Agents") with respect to the issue and sale by the Company
from time-to- time in one or more series its unsecured debt securities ("Debt
Securities") and warrants ("Warrants") to purchase Debt Securities (the Debt
Securities and Warrants being herein collectively called the "Securities").
The Debt Securities are to be issued pursuant to an indenture (the
"Indenture"), dated as of [ ], among the Company and [ ], as
trustee (the "Trustee"). Each series of warrants will be issued under a
separate warrant agreement (a "Warrant Agreement") to be entered into between
the Company and a bank or trust company, as warrant agent (the "Warrant
Agent"). As of the date hereof, the Company has authorized the issuance and
sale of up to U.S. $1,500,000,000 aggregate principal amount (or its
equivalent, based upon the applicable exchange rate at the time of issuance, in
such foreign currencies or composite currencies as the Company shall designate
in the Debt Securities) of Debt Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-_______) (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"1933 Act"), including a prospectus (the "Base Prospectus") relating, among
other things, to the Securities. The Company has filed with the Commission,
transmitted for filing to the Commission, or shall promptly file with or
transmit for filing to the Commission a prospectus supplement (the "Prospectus
Supplement") relating to the Securities, including, in each case, all
Incorporated Documents (as hereinafter defined), as from time to time amended
or supplemented by the filing of documents pursuant to the Securities Exchange
Act of 1934, as amended (the "1934 Act"), or the 1933 Act or otherwise. The
term "Prospectus" shall mean the Base Prospectus, the Prospectus Supplement,
the Incorporated Documents and any term sheet or abbreviated term sheet as
those terms are used in Rule 434 of the 1933 Act Regulations (each a "Term
Sheet") except that, if any revised prospectus shall be provided to the Agents
by the Company for use in connection with the offering of the Securities
<PAGE> 2
which is not required to be filed by the Company pursuant to Rule 424(b) of the
1933 Act Regulations, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Agents for such
use. Any reference herein to the Registration Statement or the Prospectus
shall be deemed to refer to and include the documents, financial statements and
schedules incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, and any reference to any amendment or supplement to the
Registration Statement or the Prospectus shall be deemed to refer to and
include any documents, financial statements and schedules filed by the Company
with the Commission under the 1934 Act after the date hereof, and so
incorporated by reference or deemed incorporated by reference (such
incorporated documents, financial statements and schedules being herein called
the "Incorporated Documents"). Notwithstanding the foregoing, for purposes of
this Agreement any prospectus, prospectus supplement, term sheet or abbreviated
term sheet prepared or filed with respect to an offering pursuant to the
Registration Statement of a series of securities other than the Securities
shall not be deemed to have supplemented the Prospectus.
SECTION 1. REPRESENTATIONS AND WARRANTIES; ADDITIONAL CERTIFICATES.
(a) REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to each Agent as of the date hereof, as of the date of each acceptance
by the Company of an offer for the purchase of Securities (whether through an
Agent as agent or from an Agent as principal), as of the date of each delivery
of Securities by the Company to the purchasers (the date of each such delivery
to an Agent as principal being hereafter referred to as a "Settlement Date"),
and as of the dates referred to in Section 6(a) hereof (each of the dates
referenced above being referred to hereafter as a "Representation Date"), as
follows:
(i) The Registration Statement in respect of the
Securities has been filed with the Commission; such Registration
Statement and any post-effective amendment thereto, each in the form
heretofore delivered or to be delivered to such Agent, have been
declared effective by the Commission in such form; no other document
with respect to such Registration Statement or the Incorporated
Documents has heretofore been filed or transmitted for filing with the
Commission (other than the prospectuses filed pursuant to Rule 424(b)
of the 1933 Act Regulations, each in the form heretofore delivered to
the Agent); and no stop order suspending the effectiveness of any such
Registration Statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission;
(ii) The Incorporated Documents, 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 1933 Act
or the 1934 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 amendment or
supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the 1933 Act or
<PAGE> 3
the 1934 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 any
Agent expressly for use in the Prospectus as amended or supplemented
to relate to a particular issuance of Securities;
(iii) The Registration Statement and the Prospectus, in
each case as amended and supplemented, 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 1933 Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and 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 any
Agent expressly for use in the Prospectus as amended or supplemented
to relate to a particular issuance of Securities or the information
contained in the Statement of Eligibility and Qualification of the
Trustee under the Trust Indenture Act filed as an exhibit to the
Registration Statement (the "Form T-1"); there is no contract or
document of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed as required;
(iv) The Company and its subsidiaries considered as a
whole have not sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material 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; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position or results of operations of
the Company and its subsidiaries considered as a whole, otherwise than
as set forth, incorporated by reference or contemplated in the
Prospectus;
(v) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business in an amount that is material to the business of
the Company and its subsidiaries considered as a whole so as to
require such qualification; each subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in good
3
<PAGE> 4
standing under the laws of its jurisdiction of incorporation and is
duly qualified as a foreign corporation for the transaction of
business and in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification; each of the Company and
its subsidiaries has the corporate power and authority to own or lease
its properties, as applicable, and to conduct its business as
presently conducted and proposed to be conducted, as described in the
Registration Statement;
(vi) The Securities have been duly authorized, and, when
executed, authenticated, issued and delivered pursuant to this
Agreement and any Terms Agreement, 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 and the Warrant Agreement, if any; the
Indenture has been duly authorized and duly qualified under the Trust
Indenture Act and constitutes 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; the Indenture and Warrant Agreement, if
any, conform, and the Securities of any particular issuance of
Securities will conform, in all material respects, to the descriptions
thereof in the Prospectus as amended or supplemented to relate to such
issuance of Securities; and the Warrant Agreement, if any, has been
duly authorized and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, fraudulent
transfer and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(vii) The issue and sale of the Securities, the compliance
by the Company with the provisions of the Securities, the Indenture,
any Warrant Agreement, this Agreement and any Terms Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation, or By-Laws of the Company or any statute (including,
without limitation, the Communications Act of 1934, as amended (the
"Communications Act") and the rules and regulations of the Federal
Communications Commission ("FCC") thereunder) or any order, rule or
regulation of any court or governmental agency (including, without
limitation, the FCC) or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or
with any court or governmental agency (including, without limitation,
the FCC) or body is required for the solicitation of offers to
purchase Securities, the issue and sale of the Securities or the
consummation by the Company of the other transactions contemplated by
this Agreement, any Terms Agreement, the Indenture or any Warrant
Agreement, except such as have been, or will have been prior to the
commencement date obtained under the Act or the Trust Indenture Act
and such consents,
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approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the solicitation by the Agent(s) of offers to purchase Securities from
the Company and with purchases of Securities by any Agent as
principal, as the case may be, in each case in the manner contemplated
hereby;
(viii) Other than as set forth, incorporated by reference or
contemplated in the Prospectus, there are no legal or governmental
proceedings (including proceedings before the FCC) pending to which
the Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is subject which
would reasonably be expected, in the opinion of the Company,
individually or in the aggregate, to have a material adverse effect on
the consolidated financial position or results of operations of the
Company and its subsidiaries considered as a whole, and, to the best
of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(ix) Immediately after any sale of Securities by the
Company hereunder or under any Terms Agreement, the aggregate amount
of Securities which shall have been issued and sold by the Company
hereunder or under any Terms Agreement and of any other debt
securities and warrants for debt securities of the Company (other than
such Securities) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt securities
and warrants registered under the Registration Statement;
(x) To the best of the Company's knowledge, the
accountants who have audited and reported upon the financial
statements filed with the Commission as part of the Registration
Statement and the Prospectus are independent accountants as required
by the 1933 Act. The financial statements included in the
Registration Statement or Prospectus or incorporated therein by
reference fairly present the consolidated financial position and
results of operations of the Company and its subsidiaries at the
respective dates and for the respective periods to which they apply.
Such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied, except
as set forth in the Registration Statement and Prospectus; and
(xi) The Company has complied with, and is and will be in
compliance with, the provisions of that certain Florida act relating
to disclosure of doing business with Cuba, codified as Section 517.075
of the Florida statutes, and the rules and regulations thereunder or
is exempt therefrom.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any
officer of the Company and delivered to an Agent or to counsel for the Agents
in connection with an offering of Securities shall be deemed a representation
and warranty by the Company to such Agent as to the matters covered thereby on
the date of such certificate.
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SECTION 2. SOLICITATIONS AS AGENTS; PURCHASES AS PRINCIPALS.
(a) SOLICITATIONS AS AGENTS. On the basis of the representations
and warranties herein contained, but subject to the terms and conditions herein
set forth, each Agent agrees, as an agent of the Company, to use its best
efforts to solicit offers to purchase the Securities upon the terms and subject
to the conditions set forth herein and in the Prospectus. Without the prior
written consent of the Company, the Agents are not authorized to appoint sub-
agents or to engage the services of any other broker or dealer in connection
with the offer or sale of the Securities; provided, that without the Company's
consent, the Agents may solicit offers to purchase the Securities from other
brokers or dealers. In connection with the solicitation of offers to purchase
Securities, without the prior consent of the Company, the Agents are not
authorized to provide any written information relating to the Company to any
prospective purchaser other than the Prospectus and the Incorporated Documents.
Each Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities from the
Company has been solicited by such Agent, as agent, and accepted by the
Company, but such Agent shall not have any liability to the Company in the
event any such purchase is not consummated for any reason.
The Company reserves the right, in its sole discretion, to suspend the
solicitation of offers to purchase the Securities through the Agents commencing
at any time for any period of time or permanently. Upon receipt of
instructions from the Company, the Agents will, as soon as possible, suspend
the solicitation of offers to purchase the Securities from the Company until
such time as the Company has advised the Agents that such solicitation may be
resumed.
The Company agrees to pay each Agent a commission, which such Agent is
hereby authorized to deduct from the sales proceeds of each of the Securities
sold by the Company as a result of a solicitation made by such Agent, equal to
the applicable percentage of the principal amount of each such Security, as set
forth in Exhibit A hereto. Without the consent of the Company, no Agent may
reallow any portion of the commission payable pursuant hereto to dealers or
purchasers in connection with the offer and sale of any Securities.
As an agent, each Agent is authorized, except during periods of
suspension as provided in this Agreement, to solicit offers to purchase the
Securities. Each Agent shall communicate to the Company, orally or in writing,
each reasonable offer to purchase Securities received by such Agent, as agent.
Each Agent shall have the right in its discretion reasonably exercised to
reject any offer to purchase the Securities received by such Agent which it
does not deem reasonable, and any such rejection shall not be deemed a breach
of such Agent's agreements contained herein. The Company shall have the sole
right to accept offers to purchase the Securities and may reject any such offer
in whole or in part, and any such rejection shall not be deemed to be a breach
of any agreement of the Company contained herein. The purchase price, interest
rate, maturity date and other terms of the Securities agreed upon by the
Company shall be set forth in a pricing supplement to the Prospectus to be
prepared following each acceptance by the Company of an offer for the purchase
of Securities (a "Pricing Supplement"). Except as may be otherwise provided in
any Pricing Supplement, each Debt Security will be issued in the denomination
of U.S. $1,000 or any amount in excess thereof which is an integral multiple of
U.S. $1,000. The Pricing Supplement may be in the form of a Term Sheet. All
Debt Securities will be sold at 100%
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of their principal amount unless otherwise agreed to by the Company. Each
Agent acknowledges and agrees that any funds which such Agent receives in
respect of a purchase of Securities, which purchase has been solicited by such
Agent, as agent of the Company, will be received, held and disposed of by such
Agent, as agent of the Company, subject to the right of such Agent to deduct
from the sale proceeds the applicable commission as set forth on Exhibit A
hereto.
If requested by a prospective purchaser of Securities denominated in a
currency other than U.S. dollars, the Agent soliciting the offer to purchase
will use its reasonable efforts to arrange for the conversion of U.S. dollars
into such currency to enable the purchaser to pay for such Securities. Such
requests must be made on or before the fifth Business Day preceding the date of
delivery of the Securities, or by such other dates as determined by such Agent.
Each such conversion will be made by the relevant Agent on such terms and
subject to such conditions, limitations and charges as such Agent may from time
to time establish in accordance with its regular foreign exchange practice.
All costs of exchange will be borne by purchasers of the Securities.
(b) PURCHASES AS PRINCIPAL. Each sale of Securities to an Agent
as principal shall be made in accordance with the terms contained herein and
pursuant to a separate agreement which will provide for the sale of such
Securities to, and the purchase and any reoffering thereof by, such Agent.
Each such separate agreement (which may be an oral agreement if confirmed
within 24 hours thereafter by an exchange of any standard form of written
telecommunication (including facsimile transmission) between the Agent and the
Company) is herein referred to as a "Terms Agreement." Unless the context
otherwise requires, each reference contained herein to "this Agreement" shall
be deemed to include any applicable Terms Agreement between the Company and the
Agent. Each such Terms Agreement, whether oral (and confirmed in writing,
which confirmation may be by facsimile transmission) or in writing shall be
with respect to such information (as applicable) as is specified in Exhibit B
hereto. An Agent's commitment to purchase Securities pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the
terms and conditions herein set forth. The Agents may offer the Securities
they have purchased as principal to other dealers. The Agents may sell
Securities to any dealer at a discount and, unless otherwise specified in the
applicable Terms Agreement, such discount allowed to any dealer will not be in
excess of the discount to be received by such Agent from the Company. Unless
otherwise specified in the applicable Terms Agreement, any Securities sold to
an Agent as principal will be purchased by such Agent at a price equal to 100%
of the principal amount thereof less a percentage equal to the commission
applicable to any agency sale of a Security of identical maturity.
(c) ADMINISTRATIVE PROCEDURES. Administrative procedures with
respect to the sale of Securities shall be agreed upon from time to time by the
Agents and the Company (the "Procedures"). The Procedures initially agreed
upon shall be those set forth in Exhibit C hereto. The Agents and the Company
agree to perform the respective duties and obligations specifically provided to
be performed by the Agents and the Company herein and in the Procedures.
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<PAGE> 8
SECTION 3. COVENANTS OF THE COMPANY.
The Company covenants with each Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the Agents
promptly of (i) the designation and selection of additional agents to become
party to this Agreement, (ii) the designation and selection of additional
agents for the sale of Securities pursuant to any agreement other than this
Agreement, (iii) the effectiveness of any post-effective amendment to the
Registration Statement (other than a post-effective amendment relating solely
to an offering of securities other than the Securities), (iv) the transmittal
to the Commission for filing of any supplement to the Prospectus (other than a
Pricing Supplement or a supplement relating solely to an offering of securities
other than the Securities), (v) the receipt of any comments from the Commission
with respect to the Registration Statement or the Prospectus (other than any
comments relating solely to an offering of securities other than the
Securities), (vi) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information (other than any such request relating solely to an
offering of securities other than the Securities) and (vii) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Company
will make every reasonable effort to prevent the issuance of any such stop
order and, if any such stop order is issued, to obtain the lifting thereof at
the earliest possible time unless the Company shall, in its sole discretion,
determine that it is not in its best interests to do so.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. At or prior to the filing
thereof, the Company will give the Agents notice of its intention to file any
additional registration statement with respect to the registration of
additional Securities to be covered by this Agreement, any amendment to the
Registration Statement or any amendment or supplement to the Prospectus (other
than a Pricing Supplement or an amendment or supplement relating solely to an
offering of securities other than the Securities), whether by the filing of
documents pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish
the Agents with copies of any such amendment or supplement or other documents
promptly after the filing thereof.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to the Agents one signed and as many conformed copies of
the Registration Statement (as originally filed) and of each amendment thereto
(including the Incorporated Documents and any exhibits filed therewith or
incorporated by reference therein) as the Agents may reasonably request. The
Company will furnish to the Agents as many copies of the Prospectus (as amended
or supplemented) as the Agents shall reasonably request so long as the Agents
are required to deliver a Prospectus in connection with sales or solicitations
of offers to purchase the Securities.
(d) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. So long as the
Agents are required to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Securities, if any event shall occur or
condition exist as a result of which it is necessary, in the opinion of counsel
for the Company, after consultation with counsel for the Agents, to further
amend or supplement the Prospectus in order that the Prospectus will not
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include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein not misleading in light
of the circumstances existing at the time it is delivered to a purchaser, or if
it shall be necessary, in the opinion of such counsel for the Company, to amend
or supplement the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, prompt
notice shall be given, and confirmed in writing, to the Agents to cease the
solicitation of offers to purchase the Securities in their capacity as agents
and to cease sales of any Securities the Agents may then own as principal. In
addition, if any Agent holds Securities purchased for resale pursuant to a
Terms Agreement and the Company has given notice to the Agents pursuant to this
subsection (d) within 90 days after the date of execution of such Terms
Agreement, the Company will prepare and file as soon as practicable an
amendment or supplement to the Prospectus so that the Prospectus, as amended or
supplemented, will not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein
not misleading in light of the circumstances existing at the time it is
delivered to the Agents.
(e) COMPLIANCE WITH THE 1934 ACT; ACCOUNTANTS' CONSENTS. The
Company will (i) comply, in a timely manner, with all applicable requirements
under the 1934 Act relating to the filing with the Commission of the Company's
reports pursuant to Section 13(a), 13(c) or 15(d) of the 1934 Act and, if then
applicable, of the Company's proxy statements pursuant to Section 14(a) of the
1934 Act and (ii) use its best efforts to obtain the written consent of the
Company's independent accountants as to the incorporation by reference in the
Registration Statement of the audited financial statements reported on by them
and contained in the Company's annual reports on Form 10-K under the 1934 Act;
(f) EARNINGS STATEMENTS. The Company will make generally
available to its security holders, in each case as soon as practicable but in
any event not later than 15 months after the acceptance by the Company of an
offer to purchase Securities hereunder, a consolidated earnings statement
(which need not be audited) covering the twelve-month period beginning after
the latest of (i) the effective date of the Registration Statement, (ii) the
effective date of the most recent post-effective amendment to the Registration
Statement to become effective, the Company's most recent annual report on Form
10-K filed with the Commission prior to the date of such acceptance, which
earnings statement will satisfy the provisions of Section 11(a) of the 1933
Act. The Company may elect to rely upon Rule 158 under the 1933 Act and may
elect to make such earnings statement available more frequently than once in
any period of twelve months;
(g) BLUE SKY QUALIFICATIONS. The Company will endeavor, in
cooperation with the Agents, to qualify the Securities for offering and sale
under the applicable securities laws of such states and other jurisdictions of
the United States as the Agents may reasonably designate, and will maintain
such qualifications in effect for as long as may be required for the
distribution of the Securities; PROVIDED, HOWEVER, that the Company will
promptly notify the Agents of any suspension or termination of any such
qualifications, and PROVIDED, FURTHER, that the Company shall not be obligated
to register or qualify as a foreign corporation or take any action which would
subject it to general service of process in any jurisdiction where it is not
now so subject;
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(h) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of subsections (b), (c), (d), (e) or (g)
of this Section 3 during any period from the time the Agents shall have been
notified to suspend the solicitation of offers to purchase the Securities in
their capacity as agents or resales of Securities purchased pursuant to a Terms
Agreement, to the time the Company shall determine that the solicitation of
offers to purchase the Securities through any Agent or Agents or resales as
principal of Securities purchased pursuant to a Terms Agreement by any Agent or
Agents should be resumed. Notwithstanding the foregoing, if any Agent holds
Securities purchased for resale pursuant to a Terms Agreement, the Company
shall comply with the provisions of subsections (b), (c), (d), (e) and (g) of
this Section 3 during the 90-day period from and including the date of
execution of such Terms Agreement; PROVIDED, HOWEVER, that the Company shall
have the right, in its reasonable business judgment, to suspend such compliance
during such 90-day period for an aggregate of up to 45 days, in which event
such 90-day period shall be extended by the greater of (i) the number of days
included in any such period of suspension and (ii) 30 days.
SECTION 4. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(i) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and any
amendments or supplements thereto and all Incorporated Documents;
(ii) The preparation, filing and printing of this
Agreement;
(iii) The preparation, printing, issuance and delivery of
the Securities;
(iv) The fees and disbursements of the Trustee and its
counsel, of any calculation agent or exchange rate agent and of The
Depository Trust Company;
(v) The qualification of the Securities under securities
laws in accordance with the provisions of Section 3(g) hereof,
including filing fees and the reasonable fees and disbursements of
Gibson, Dunn & Crutcher LLP, as counsel to the Agents, in connection
therewith and in connection with the preparation of any Blue Sky
survey;
(vi) The printing and delivery to the Agents in quantities
as hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by the Agents of the Prospectus
and any amendments or supplements thereto in connection with
solicitations of offers to purchase, or confirmations of sales of, the
Securities;
(vii) Any fees charged by rating agencies for the rating of
the Securities;
(viii) Any advertising and other out-of-pocket expenses of
the Agents incurred with the prior written approval of the Company;
and
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(ix) The subsequent delivery of legal opinions pursuant to
Section 6(b) hereof.
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of any Agent to solicit offers to purchase the
Securities as agent of the Company and the obligations of any Agent to purchase
Securities pursuant to any Terms Agreement will be subject at all times to the
accuracy, as of the applicable Representation Date, of the representations and
warranties on the part of the Company herein and to the accuracy, as of the
date made, of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all covenants and agreements herein contained on its part to
be performed and observed, and to the following additional conditions
precedent:
(a) OPINION OF COUNSEL TO THE COMPANY. On the date hereof, the
Agents shall have received an opinion from Locke Purnell Rain Harrell (A
Professional Corporation) counsel to the Company, dated as of the date hereof
and in form and substance satisfactory to counsel for the Agents to the effect
that:
(i) The Company and each of the Subsidiaries is a
corporation validly existing and in good standing under the laws of
its state of incorporation;
(ii) The Company has full corporate power and corporate
authority to enter into and perform its obligations under this
Agreement and the Indenture to borrow money as contemplated in this
Agreement and the Indenture, and to issue, sell and deliver the
Securities;
(iii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution
and delivery by the Trustee) is a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
except that such enforceability may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, (B) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law); and (C) such other matters as shall be satisfactory to
counsel to the Agents;
(v) No consent or approval of any United States
governmental authority or other United States person or United States
entity is required in connection with the issuance or sale of the
Securities other than registration thereof under the 1933 Act,
qualification of the Indenture under the 1939 Act, and such
registrations or qualifications as may be necessary under the
securities or Blue Sky laws of the various United States jurisdictions
in which the Securities are to be offered or sold;
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(vi) (a) The Debt Securities, when executed by the
Company and authenticated in accordance with the terms of the
Indenture (assuming the due authorization, execution and delivery of
the Indenture by the Trustee) and issued to and paid for by the
purchasers thereof, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company enforceable
against the Company in accordance with their respective terms, except
that such enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally; (B)
general principles of equity (regardless of whether such enforcement
is sought in a proceeding in equity or at law); and (C) such other
matters as shall be satisfactory to counsel to the Agents;
(b) The Warrants, when issued by Company will be
valid and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except that such
enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally; (B)
general principles of equity (regardless of whether such enforcement
is sought in a proceeding in equity or at law); and (C) such other
matters as shall be satisfactory to counsel to the Agents.
(vii) The Registration Statement has become effective under
the 1933 Act and the Indenture has been qualified under the 1939 Act,
and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated;
(viii) The execution and delivery of this Agreement and the
Indenture by the Company, the issuance and sale of the Securities and
the fulfillment of this Agreement and the Indenture by the Company
will not conflict with or constitute a breach of or a default (with
the passage of time or otherwise) under (A) the Certificate of
Incorporation or Bylaws of the Company, (B) any statute, law or
regulation to which the Company or any of its properties may be
subject or (C) any judgment, decree or order, known to such counsel,
of any court or governmental agency or authority entered in any
proceeding to which the Company was or is now a party or by which it
is bound; provided, that such counsel may state that (1) the opinion
set forth in clause (B) of this paragraph (viii) is limited to those
United States statutes, laws or regulations currently in effect which,
in such counsel's experience, are normally applicable to transactions
of the type contemplated by this Agreement, and (2) no opinion is
expressed as to the securities or Blue Sky laws of the various
jurisdictions in which the Securities are to be offered and (3) no
opinion is expressed with respect to such clause (B) with respect to
the Securities which are to be indexed or linked to any foreign
currency, composite currency, commodity, equity index or similar
index;
(ix) The Registration Statement, as of the date it became
effective, and the Prospectus, as of the date of this Agreement,
appear on their face to be appropriately responsive in all material
respects to the requirements of the 1933 Act, except that in each case
such counsel need not express an opinion as to (i) the Incorporated
Documents,
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(ii) the financial statements and schedules and other financial or
statistical data included or incorporated by reference therein or
(iii) the Form T-1;
(x) The statements in the Prospectus under the caption
"Description of Debt Securities" and "Description of Warrants" insofar
as they purport to summarize certain provisions of documents
specifically referred to therein, are in all material respects
accurate summaries of such provisions.
In rendering the opinions set forth above, such counsel may state that
(1) with respect to paragraphs (iv) and (vi), such enforcement may be limited
by: (i) requirements that a claim with respect to any Securities denominated
other than in United States dollars (or a judgment denominated other than in
United States dollars in respect of such claim) be converted into United States
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law and (ii) governmental authority to limit, delay or prohibit the
making of payments outside the United States or in foreign currency or
composite currency; and (2) with respect to paragraphs (iv), (v) and (vi), no
opinion is expressed thereto with respect to any Securities that are to be
indexed or linked to any foreign currency or composite currency, commodity,
equity index or similar index.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, counsel
employed by the Company, representatives of the independent public accountants
for the Company, representatives of the Agents and counsel for the Agents, at
which conferences the contents of the Registration Statement and Prospectus and
related matters were discussed and, although such counsel is not passing upon,
and does not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus and have not made any independent check or verification thereof, on
the basis of the foregoing, no facts have come to such counsel's attention that
lead them to believe that either the Registration Statement (excluding the
Incorporated Documents) at the time such Registration Statement became
effective (which, for the purposes of this paragraph, shall have the meaning
set forth in Rule 158(c) of the 1933 Act Regulations) 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
the Prospectus (excluding the Incorporated Documents) as of the date of this
Agreement (and, if the opinion is being given pursuant to Section 6(b) hereof
as a result of the Company having entered into a Terms Agreement, as of the
Settlement Date with respect to such Terms Agreement) contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, except that such counsel need express no opinion
with respect to (i) the Incorporated Documents, (ii) the financial statements,
schedules and other financial or statistical data included or incorporated by
reference in the Registration Statement or the Prospectus or (iii) the Form
T-1.
(b) OPINION OF COUNSEL EMPLOYED BY THE COMPANY. On the date
hereof, the Agents shall have received an opinion from Michael J. McCarthy,
Senior Vice President, General Counsel and Secretary, dated as of the date
hereof and in form and substance satisfactory to counsel for the Agents, to the
effect that:
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(i) Except as set forth in the Prospectus (including the
Incorporated Documents), there is not pending or, to the best of such
counsel's knowledge, after reasonable inquiry, threatened any action,
suit or proceeding against the Company or any of its subsidiaries
before or by any court or governmental agency or body, which is likely
(to the extent not covered by insurance) to have a material adverse
effect on the consolidated financial condition or earnings of the
Company and its subsidiaries, considered as one enterprise;
(ii) To the best of such counsel's knowledge, after
reasonable inquiry, there is no contract or document of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required;
(iii) To the best of such counsel's knowledge, after
reasonable inquiry, the Company is not in violation of its Certificate
of Incorporation or Bylaws;
(iv) To the best of such counsel's knowledge, after
reasonable inquiry, (x) the execution and delivery, and (y) the
performance, of this Agreement and the Indenture will not conflict
with or constitute a breach of, or default (with the passage of time
or otherwise) under, any material contract, indenture, mortgage, loan
agreement, security, lease or other instrument to which the Company is
a party or by which it may be bound, or to which any of the property
or assets of the Company or any of its subsidiaries is subject;
(v) The Incorporated Documents, as of the date of this
Agreement, comply as to form in all material respects with the
requirements of the 1933 Act, except that in each case such counsel
need not express an opinion as to the financial statements and
schedules and other financial or statistical data included or
incorporated by reference therein.
In addition, such counsel shall state that nothing has come to such
counsel's attention that leads him to believe that either the Registration
Statement (including the Incorporated Documents) at the time such Registration
Statement became effective (which, for the purposes of this paragraph, shall
have the meaning set forth in Rule 158(c) of the 1933 Act Regulations)
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 the Prospectus (including the Incorporated Documents) as of
the date of this Agreement (and, if the opinion is being given pursuant to
Section 6(b) hereof as a result of the Company having entered into a Terms
Agreement, as of the Settlement Date with respect to such Terms Agreement)
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,
in light of the circumstances under which they were made, not misleading,
except that such counsel need express no opinion with respect to the financial
statements, schedules and other financial or statistical data included or
incorporated by reference in the Registration Statement or Prospectus or with
respect to the Form T-1.
(c) OPINION OF AGENTS' COUNSEL. On the date hereof, the Agents
shall have received an opinion from Gibson, Dunn & Crutcher LLP, counsel to the
Agents, dated as of the date hereof and in form and substance satisfactory to
the Agents.
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<PAGE> 15
(d) OFFICER'S CERTIFICATE. On the date hereof (and, if this
certificate is being delivered pursuant to a Terms Agreement, as of the
Settlement Date with respect to such Terms Agreement), the Agents shall have
received a certificate signed by an officer of the Company, substantially in
the form of Appendix I hereto and dated the date hereof, to the effect that (i)
the representations and warranties of the Company contained in Section 1(a)
hereof are true and correct in all material respects with the same force and
effect as though expressly made at and as of the date of such certificate, (ii)
the Company has complied with all agreements and satisfied all conditions
required by this Agreement or the Indenture on its part to be performed or
satisfied at or prior to the date of such certificate, and (iii) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or, to the best of such
officer's knowledge, threatened by the Commission. The Officer's Certificate
shall further state that except as contemplated in the Prospectus or reflected
therein by the filing of any amendment or supplement thereto or any
Incorporated Document, at the date hereof and at each Settlement Date with
respect to any Terms Agreement, there shall not have been, since the date of
the most recent consolidated financial statements of the Company included or
incorporated by reference in the Prospectus, any material adverse change in the
consolidated financial condition or earnings of the Company and its
subsidiaries, considered as one enterprise.
(e) COMFORT LETTER. On the date hereof, the Agents shall have
received a letter from the Company's independent certified public accountants,
dated as of the date hereof and in form and substance reasonably satisfactory
to the Agents.
(f) OTHER DOCUMENTS. On the date hereof and on each Settlement
Date with respect to any applicable Terms Agreement, counsel to the Agents
shall have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Securities as herein contemplated and related proceedings,
or in order to evidence the accuracy and completeness of any of the
representations and warranties or the fulfillment of any of the conditions
herein contained.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by any of the Agents (as to itself only) and any Terms Agreement may
be terminated by the Agent party to such Terms Agreement by notice to the
Company at any time and any such termination shall be without liability of any
party to any other party, except that the covenants set forth in Section 3(f)
hereof, the provisions of Section 4 hereof, the indemnity and contribution
agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections
9 and 13 hereof shall remain in effect.
SECTION 6. SUBSEQUENT DOCUMENTATION REQUIREMENT OF THE COMPANY.
The Company covenants and agrees that so long as the Securities are
authorized for sale pursuant to this Agreement and unless the sale of the
Securities has been suspended as provided in this Agreement:
(a) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by (i) a
15
<PAGE> 16
Pricing Supplement or an amendment or other supplement providing solely for a
change in the interest rates of the Securities or changes in other terms of the
Securities or (ii) an amendment or supplement which relates exclusively to an
offering of securities other than the Securities) or there is filed with the
Commission any document incorporated by reference into the Prospectus or the
Company sells Securities to an Agent pursuant to a Terms Agreement, the terms
of which so require, the Company shall use its best efforts to furnish or cause
to be furnished to the Agents or to the Agent party to the Terms Agreement, as
the case may be, promptly following such amendment, supplement or filing or on
the Settlement Date with respect to such Terms Agreement, as the case may be, a
certificate in form satisfactory to counsel for the Agents to the effect that
the statements contained in the certificate referred to in Section 5(d) hereof
which was last furnished to the Agents are true and correct at the time of such
amendment, supplement, filing or sale, as the case may be, as though made at
and as of such time (except that such statements shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented to
such time) or, in lieu of such certificate, a certificate of the same tenor as
the certificate referred to in said Section 5(d), modified as necessary to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate.
(b) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by (i) a Pricing Supplement or an amendment or other supplement
providing solely for a change in the interest rates of the Securities or
changes in other terms of the Securities or (ii) an amendment or supplement
providing primarily for the inclusion of additional financial information, or
(iii) an amendment or supplement which relates exclusively to an offering of
securities other than the Securities) or there is filed with the Commission any
document incorporated by reference into the Prospectus (other than any Annual
Report on Form 10-K, Current Report on Form 8-K or Quarterly Report on Form
10-Q relating primarily to financial statements or other financial information
as of and for any fiscal quarter) or the Company sells Securities to an Agent
pursuant to a Terms Agreement, the terms of which so require, the Company shall
use its best efforts to furnish or cause to be furnished promptly following
such amendment, supplement or filing or on the Settlement Date with respect to
such Terms Agreement, as the case may be, to the Agents or to the Agent party
to the Terms Agreement, as the case may be (with a copy to counsel to the
Agents or counsel to such Agent, as the case may be), letters substantially in
the form of Appendix II hereto (modified, as necessary, in the case of a Terms
Agreement) from the counsel last furnishing the opinions referred to in
Sections 5(a) and 5(b) hereof or, in lieu of such letters, letters from other
counsel reasonably satisfactory to the Agents (which, in the case of the
opinions referred to in such Section 5(b), shall include Michael J. McCarthy,
Senior Vice President, General Counsel and Secretary the Company), dated the
date of delivery of such letter and in form satisfactory to counsel for the
Agents, of the same tenor as the opinions referred to in Sections 5(a) and 5(b)
(other than, in the case of the opinion delivered pursuant to Section 5(b)
hereof, the matters covered by Sections 5(b)(i) and 5(b)(iv)(x)) hereof, but
modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion.
The Company shall use its best efforts to furnish or cause to be
furnished to the Agents, promptly following each filing by the Company of a
Quarterly Report on Form 10-Q or an Annual
16
<PAGE> 17
Report on Form 10-K, a letter from the counsel last furnishing the opinion
referred to in Section 5(b) hereof, or from other counsel reasonably
satisfactory to the Agents, dated the date of delivery of such letter and in
form satisfactory to counsel for the Agents, of the same tenor as the opinion
referred to in Section 5(b)(i) hereof, but modified, as necessary, to relate to
the Registration Statement and Prospectus as amended and supplemented to the
time of delivery of such letter.
(c) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the Commission
any document incorporated by reference into the Prospectus which contains
additional financial statement information relating to the Company or the
Company sells the Securities pursuant to a Terms Agreement, the terms of which
so require, the Company shall use its best efforts to cause the Company's
independent public accountants promptly following such amendment, supplement or
filing or on the Settlement Date with respect to such Terms Agreement, as the
case may be, to furnish the Agents or to the Agent party to the Terms
Agreement, as the case may be, a letter, dated the date of filing of such
amendment, supplement or document with the Commission, or such Settlement Date,
as the case may be, in form satisfactory to counsel for the Agents (or such
Agent), of the same tenor as the letter referred to in Section 5(e) hereof but
modified, as necessary, to relate to the Registration Statement and Prospectus,
as amended and supplemented to the date of such letter, and of the same general
tenor as the letter referred to in Section 5(e) with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Company; PROVIDED, HOWEVER, that if
the Registration Statement or the Prospectus is amended or supplemented
primarily to include financial information as of and for a fiscal quarter, the
Company's independent certified public accountants may limit the scope of such
letter to the unaudited financial statements included in such amendment or
supplement.
SECTION 7. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls an
Agent within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever (including, subject to the limitations set
forth in subsection (c) below, the reasonable fees and disbursements
of counsel chosen by the Agents), as incurred, insofar as such loss,
liability, claim, damage or expense arises out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading, or arises out of any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading;
17
<PAGE> 18
(ii) against any and all loss, liability, claim, damage
and expense whatsoever (including, subject to the limitations set
forth in subsection (c) below, the reasonable fees and disbursements
of counsel chosen by the Agents), as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever insofar as such
loss, liability, claim, damage or expense arises out of any such
untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever (including,
subject to the limitations set forth in subsection (c) below, the
reasonable fees and disbursements of counsel chosen by the Agents), as
incurred, reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever, based upon any such untrue statement or omission, or any
such alleged untrue statement or omission;
PROVIDED, HOWEVER, that this indemnity shall not apply to any loss, liability,
claim, damage or expense (A) to the extent arising out of or based upon any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon the Form T-1 under the 1939 Act filed as an exhibit to the
Registration Statement; or (B) to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission in the Prospectus
if such untrue statement or alleged untrue statement or omission or alleged
omission is corrected in all material respects in an amendment or supplement to
the Prospectus and if, having previously been furnished by or on behalf of the
Company with copies of the Prospectus, as so amended or supplemented, such
Agent thereafter failed to deliver such Prospectus, as so amended or
supplemented, prior to or concurrently with the sale of a Security to the
person asserting such loss, liability, claim, damage or expense who purchased
such Security which are the subject thereof from such Agent; or (C) as to which
such Agent may be required to indemnify the Company pursuant to the provisions
of subsection (b) of this Section 7.
(b) INDEMNIFICATION OF THE COMPANY. Each Agent agrees to
indemnify and hold harmless the Company, its directors, each of its officers
who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section 7, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the Company by
such Agent expressly for use in the Registration Statement or the Prospectus.
(c) GENERAL.
(i) In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
brought against any Agent or any person controlling such Agent, based
upon the Registration Statement or the Prospectus and with respect to
which indemnity may be sought against the Company pursuant to this
Section 7,
18
<PAGE> 19
such Agent or controlling person shall promptly notify the Company in
writing, and the Company shall assume the defense thereof, including
the employment of counsel (such counsel to be reasonably acceptable to
such Agent) and payment of all expenses. Any such Agent or any such
controlling person shall have the right to employ separate counsel in
any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such separate counsel shall be
at the expense of such Agent or such controlling person unless (A) the
employment of such counsel shall have been specifically authorized in
writing by the Company, (B) the Company shall have failed to assume
the defense and employ counsel or (C) the named parties to any such
action, suit or proceeding (including any impleaded parties) shall
include both such Agent or such controlling person and the Company,
and such Agent or such controlling person shall have been advised by
counsel that there may be one or more legal defenses available to it
which are different from, or additional to, those available to the
Company (in which case, if such Agent or such controlling person
notifies the Company in writing that it elects to employ separate
counsel at the expense of the Company, the Company shall not have the
right to assume the defense of such action, suit or proceeding on
behalf of such Agent or such controlling person, it being understood,
however, that the Company shall not, in connection with any one such
action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel)
for all such Agents and such controlling persons, which firm shall be
designated in writing by a majority of all such Agents, on behalf of
all of such Agents and such controlling persons).
(ii) In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
brought against the Company, any of the Company's directors or
officers, or any person controlling the Company, with respect to which
indemnity may be sought against any Agent pursuant to this Section 7,
such Agent shall have the rights and duties given to the Company by
subsection (c)(i) of this Section 7, and the Company, the Company's
directors and officers and any such controlling person shall have the
rights and duties given to the Agents by subsection (c)(i) of this
Section 7.
SECTION 8. CONTRIBUTION.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 7 hereof
is for any reason held to be unenforceable with respect to the indemnified
parties although applicable in accordance with its terms, the Company and each
Agent shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said indemnity agreement incurred by
the Company and the Agents, as incurred, in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and
each of the Agents participating in the offering that gave rise to such losses,
liabilities, claims, damages and expenses (a "Relevant Agent") on the other
hand from the offering of such Securities. 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 pursuant to Section
7(c) hereof or pursuant to the last sentence
19
<PAGE> 20
of this Section 8, then the Company and each Agent shall contribute to such
aggregate losses, liabilities, claims, damages and expenses incurred by the
Company and the Agents, as incurred, 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 each Relevant Agent on the other in connection with
the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and each Relevant
Agent on the other hand in connection with the offering of such Securities
shall be deemed to be in the same proportion as the total net proceeds from the
sale of such Securities by such Relevant Agent received by the Company (before
deducting expenses) bear to the total commissions or other compensation or
remuneration received by such Relevant Agent in respect thereof. 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 or such Relevant Agent and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. If more than one Agent is a Relevant Agent in respect of a
proceeding, each Relevant Agent's obligation to contribute pursuant to this
Section 8 shall be several and not joint, and shall be in the proportion that
the principal amount of the Securities that are the subject of such proceeding
and that were offered and sold through such Relevant Agent bears to the total
principal amount of the Securities that are the subject of such proceeding.
Notwithstanding the provisions of this Section 8, no Agent shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities purchased by or through it were sold exceeds the amount of any
damages which such Agent 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 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person, if any, who controls an Agent within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such Agent, and each
director of the Company, each officer of the Company who sign within the
meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company. Any party entitled to contribution pursuant to
the first sentence of this Section 8 will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 8, notify such party or parties from whom contribution may
be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought, from any
other obligation it or they may have otherwise than under this Section 8;
PROVIDED, HOWEVER, that such notice need not be given if such party entitled to
contribution hereunder has previously given notice pursuant to Section 7(c)
hereof with respect to the same action, suit or proceeding.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement or any Terms Agreement, or contained in certificates of officers of
the Company submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on
20
<PAGE> 21
behalf of any Agent or any controlling person of any Agent, or by or on behalf
of the Company, and shall survive each delivery of and payment for any of the
Securities.
SECTION 10. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
Terms Agreement) may be terminated by the Company (i) for any reason at any
time with respect to any Agent or Agents upon the giving of 2 business days'
written notice of such termination to each other party hereto or (ii) at any
time upon notice to each other party hereto if no Securities then remain
authorized for sale pursuant hereto. This Agreement may be terminated by any
Agent (as to itself only) either (x) upon the giving of 2 business days'
written notice of such termination to each other party hereto or (y) at any
time upon notice to the Company if the Company shall have failed to furnish or
cause to be furnished the certificates, opinions or letters referred to in
Section 5 or 6 hereof or if no Securities then remain authorized for sale
pursuant hereto.
(b) TERMINATION OF A TERMS AGREEMENT. An Agent party to a Terms
Agreement may terminate such Terms Agreement (as to itself only) immediately
upon notice to the Company, at any time prior to the Settlement Date relating
thereto if (i) there has been, since the date of this Agreement or since the
respective dates as of which information is given in the Registration
Statement, any material adverse change in the consolidated financial condition
or earnings of the Company and its subsidiaries, considered as one enterprise,
(ii) there has occurred any material adverse change in the financial markets in
the United States or any outbreak or escalation of hostilities or other
calamity or crisis, the effect of which is such as to make it, in the
reasonable judgment of such Agent, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, (iii) if trading in any
securities of the Company has been suspended (other than pursuant to a request
by the Company with respect to an announcement by the Company of certain
information not constituting a material adverse change, since the date of this
Agreement or the respective date as of which information is given in the
Registration Statement, in the consolidated financial condition or earnings of
the Company and its subsidiaries, considered as one enterprise), the effect of
which is such as to make it, in the reasonable judgment of such Agent,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, (iv) if trading generally on the New York Stock Exchange has
been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities shall have been required, by such
exchange or by order of the Commission or any other governmental authority, or
if a banking moratorium has been declared by either Federal or New York
authorities or if a banking moratorium has been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Securities are denominated or payable or (v) after the
date of such Terms Agreement, the rating assigned by any nationally recognized
securities rating agency to any debt securities of the Company as of the date
of such Terms Agreement shall have been lowered or any such rating agency shall
have publicly announced that it has placed any debt securities of the Company
on what is commonly termed a "watch list" with negative implications.
(c) GENERAL. In the event of any such termination, no party will
have any liability to any other party hereto, except that (i) a terminating
Agent shall be entitled to any commissions earned in accordance with the third
paragraph of Section 2(a) hereof, (ii) if at the time of
21
<PAGE> 22
termination (A) a terminating Agent and the Company shall have entered into a
Terms Agreement and the Settlement Date with respect thereto shall not yet have
occurred or (B) an offer to purchase any of the Securities has been accepted by
the Company but the time of delivery to the purchaser or his agent of
Securities relating thereto has not occurred, the covenants set forth in
Sections 3 (subject to the provisions of Section 3(h)) and 6 hereof shall
remain in effect until such Settlement Date or until such Securities are so
delivered, as the case may be, and (iii) the covenant set forth in Section 3(f)
hereof, the provisions of Section 4 hereof, the indemnity and contribution
agreements set forth in Sections 7 and 8 hereof, and the provisions of Sections
10 and 13 hereof shall remain in effect.
SECTION 11. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Agents shall be directed,
as the case may be, to:
[ ]
Notices to the Company shall be directed to it at:
[ ]
SECTION 12. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents (and, in the case of a Terms Agreement, the Agent or Agents party
thereto) and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to
in Sections 7 and 8 hereof and their heirs and legal representatives, any legal
or equitable right, remedy or claim under or in respect of this Agreement or
any provisions herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES CREATED
HEREBY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH
STATE.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all
22
<PAGE> 23
counterparts will become a binding agreement between the Agents and the Company
in accordance with its terms.
Very truly yours,
A. H. BELO CORPORATION
By
-------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[ ]
By
-------------------------------
Name:
Title:
- ---------------------------------
[( )]
[ ]
By
-------------------------------
Name:
Title:
23
<PAGE> 24
EXHIBIT A
Commission
<TABLE>
<CAPTION>
TERM(1) RATE(2)
- ---- ----
<S> <C>
More than 9 months but less than 1 year . . . . . . . 0.___%
From 1 year but less than 18 months . . . . . . . . . 0.___
From 18 months but less than 2 years . . . . . . . . 0.___
From 2 years but less than 3 years . . . . . . . . . 0.___
From 3 years but less than 4 years . . . . . . . . . 0.___
From 4 years but less than 5 years . . . . . . . . . 0.___
From 5 years but less than 6 years . . . . . . . . . 0.___
From 6 years but less than 7 years . . . . . . . . . 0.___
From 7 years but less than 10 years . . . . . . . . . 0.___
From 10 years but less than 15 years . . . . . . . . 0.___
From 15 years but less than 20 years . . . . . . . . 0.___
From 20 years but less than 30 years . . . . . . . . 0.___
From 30 years . . . . . . . . . . . . . . . . . . . . To be determined by the
Company and the
relevant Agent(s)
</TABLE>
- -----------------
(1) With respect to each Security that is subject to purchase by the
Company at the option of the holder thereof (a "Put Security"), the
word "Term" as used in this Exhibit A refers to the earliest purchase
date specified in the applicable Put Security.
(2) With respect to each Security that is a Original Issue Discount
Security (as defined in the Indenture), the commission payable to
each Agent with respect to each such Security sold as a result of a
solicitation made by such Agent shall be based on the purchase price
of such Security.
A-1
<PAGE> 25
EXHIBIT B
The following terms, if applicable, shall be agreed to by each Agent and the
Company pursuant to each Terms Agreement:
Principal Amount: $_________
(or principal amount of foreign currency
or composite currency)
Interest Rate
If Fixed Rate Security, Interest Rate:
If Floating Rate Security:
Base Rate or Rates:
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Dates:
Index Maturity:
CMT Maturity Index, if any:
Interest Determination Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent (if other than the Trustee):
If Redeemable:
Earliest Redemption Date:
Redemption Price:
Stated Maturity:
Final Maturity (for Renewable Securities):
Initial Maturity (for Renewable Securities):
Purchase Price: ___%
Settlement Date and Time:
Currency of Denomination (if currency is other than
U.S. dollar):
Currency of Payment (if currency is other than
U.S. dollar):
Denominations:
Additional Terms:
B-1
<PAGE> 26
Also, agreement(4) as to whether the following will be required:
Officer's Certificate pursuant to Section 6(a) of the Distribution
Agreement.
Legal Opinions pursuant to Section 6(b) of the Distribution Agreement.
Comfort Letter pursuant to Section 6(c) of the Distribution Agreement.
Any restriction on the ability of the Company to sell senior debt
securities with an identical or substantially similar maturity between the
date of the Terms Agreement and the applicable Settlement Date.
Payment by the Company of legal expenses of counsel to Agent(s).
- ----------------
(4) The following generally will not be required in connection with a sale
of less than $50,000,000 aggregate principal amount of Securities.
B-2
<PAGE> 27
Exhibit C
Procedures
<PAGE> 28
Appendix I
FORM OF OFFICER'S CERTIFICATE
A.H. BELO CORPORATION
I, [Name], [Title] of A.H. Belo Corporation, a Delaware corporation
(the "Company"), pursuant to Section 5(d) of the Distribution Agreement, dated
[ ], 1997 (the "Distribution Agreement"), between the Company
and each of (i) [ ], (ii) [ ]
(collectively, the "Agents"), relating to the offering from time to time by the
Company directly or through the Agents of up to $1,500,000,000 aggregate
principal amount of debt securities and warrants of the Company to purchase
such debt securities, hereby certify on behalf of the Company that:
1. Except as contemplated in the Prospectus (as defined in the
Distribution Agreement) or reflected therein by the filing of any amendment or
supplement thereto or any Incorporated Document (as defined in the Distribution
Agreement), since the date of the most recent consolidated financial statements
included or incorporated by reference in the Prospectus, there has not been any
material adverse change in the consolidated financial condition or earnings of
the Company and its subsidiaries, taken as a whole.
2. The representations and warranties of the Company contained in
Section 1(a) of the Distribution Agreement are true and correct in all material
respects with the same force and effect as though expressly made at and as of
the date hereof.
3. The Company has complied with all agreements and satisfied all
conditions required by the Distribution Agreement or the Indenture (as defined
in the Distribution Agreement) on its part to be performed or satisfied at or
prior to the date hereof.
4. No stop order suspending the effectiveness of the Registration
Statement (as defined in the Distribution Agreement) has been issued and no
proceedings for that purpose have been initiated or, to the best of my
knowledge, threatened by the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have hereunto signed my name this ____ day of
__________, 1997.
---------------------------
Name:
Title:
I-1
<PAGE> 29
Appendix II
FORM OF RELIANCE LETTER OF COUNSEL
___________, 19
[Investment Banks]
Re: A.H. BELO CORPORATION DEBT SECURITIES AND WARRANTS
Dear Sirs:
[We] [I] have delivered an opinion to you dated _________, 19__ as
counsel to A.H. Belo Corporation (the "Company"), pursuant to Section 5 of
the Distribution Agreement, dated as of [ ], 1997
(the "Distribution Agreement"), between the Company and [the investment banks].
You may continue to rely upon such opinion as if it were dated as of this date,
except that all statements and opinions contained therein shall be deemed to
relate to the Registration Statement and Prospectus (as such terms are defined
in the Distribution Agreement) as amended and supplemented to this date.
This letter is delivered to you pursuant to Section 6(b) of the
Distribution Agreement.
Very truly yours,
II-1
<PAGE> 1
EXHIBIT 4.1
================================================================================
A. H. BELO CORPORATION,
COMPANY
AND
____________________________________________,
TRUSTEE
_______________________________________
INDENTURE
DATED AS OF _________________________, 1997
_______________________________________
================================================================================
<PAGE> 2
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture
dated as of ___________________, 1997 between A. H. Belo Corporation and
_______ ____________________________.
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
--------------- -----------------
<S> <C>
Section 310
(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8, 6.10
Section 311
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13(b)
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)(2), 7.3(b)
Section 312
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1, 7.2(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(b)
Section 313
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a), 7.3(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(c)
Section 314
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Section 315
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 6.2, 7.3(a)(6)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(a), 6.1(c)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2, 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2, 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4
Section 317
(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3
Section 318
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.7
</TABLE>
- ---------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
ii
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request . . . . . . . . . . . . . . . . . . . . . . 2
Consolidated Subsidiary . . . . . . . . . . . . . . . . . . 3
Consolidated Net Tangible Assets . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . 3
Currency . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depository . . . . . . . . . . . . . . . . . . . . . . . . . 3
Discharged . . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar" or "$ . . . . . . . . . . . . . . . . . . . . . . . 3
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
European Communities . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . 3
Fixed Rate Security . . . . . . . . . . . . . . . . . . . . 3
Floating Rate Security . . . . . . . . . . . . . . . . . . . 3
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . 3
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . 4
Original Issue Discount . . . . . . . . . . . . . . . . . . 4
Original Issue Discount Security . . . . . . . . . . . . . . 4
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . 6
Principal Property . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . 6
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . 6
Sale and Lease-Back Transaction . . . . . . . . . . . . . . 6
Securities" or "Security . . . . . . . . . . . . . . . . . . 6
Security Register . . . . . . . . . . . . . . . . . . . . . 6
Significant Subsidiary . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . . . . . 7
United States Alien . . . . . . . . . . . . . . . . . . . . 7
U.S. Government Obligations . . . . . . . . . . . . . . . . 7
Value . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Vice President . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.2 Compliance Certificates and Opinions . . . . . . . . 8
SECTION 1.3 Form of Documents Delivered to Trustee . . . . . . . 8
SECTION 1.4 Acts of Holders . . . . . . . . . . . . . . . . . . . 9
SECTION 1.5 Notices, Etc., to Trustee and Company . . . . . . . . 10
SECTION 1.6 Notice to Holders; Waiver . . . . . . . . . . . . . . 10
SECTION 1.7 Conflict with Trust Indenture Act . . . . . . . . . . 11
SECTION 1.8 Effect of Headings and Table of Contents . . . . . . 11
SECTION 1.9 Successors and Assigns . . . . . . . . . . . . . . . 11
SECTION 1.10 Separability Clause . . . . . . . . . . . . . . . . . 11
SECTION 1.11 Benefits of Indenture . . . . . . . . . . . . . . . . 11
SECTION 1.12 Governing Law . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.13 Legal Holidays . . . . . . . . . . . . . . . . . . . 12
SECTION 1.14 Incorporators, Stockholders, Officers and Directors
Exempt from Individual Liability . . . . . . . . . . 12
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C>
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . 12
SECTION 2.2 Form of Trustee's Certificate of Authentication . . . 13
SECTION 2.3 Securities Issuable in the Form of a Global Security 13
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series . . . . . . . . 16
SECTION 3.2 Denominations . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.3 Execution, Authentication, Delivery and Dating . . . 19
SECTION 3.4 Temporary Securities . . . . . . . . . . . . . . . . 21
SECTION 3.5 Registration, Registration of Transfer and Exchange . 22
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities . . 23
SECTION 3.7 Payment of Interest; Interest Rights Preserved . . . 24
SECTION 3.8 Persons Deemed Owners . . . . . . . . . . . . . . . . 24
SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . . . 25
SECTION 3.11 Currency of Payments in Respect of Securities . . . . 25
SECTION 3.12 Judgments . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture . . . . . . . 26
SECTION 4.2 Application of Trust Money . . . . . . . . . . . . . 27
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . 27
SECTION 5.2 Acceleration of Maturity;
Rescission and Annulment . . . . . . . . . . . . . . 29
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . 31
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . . . 31
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . 32
</TABLE>
v
<PAGE> 7
<TABLE>
<S> <C>
SECTION 5.6 Application of Money Collected . . . . . . . . . . . 33
SECTION 5.7 Limitation on Suits . . . . . . . . . . . . . . . . . 33
SECTION 5.8 Unconditional Right of Holders to
Receive Principal, Premium and Interest . . . . . . . 34
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . . . 34
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . . . 34
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . 35
SECTION 5.12 Control by Holders . . . . . . . . . . . . . . . . . 35
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . 35
SECTION 5.14 Undertaking for Costs . . . . . . . . . . . . . . . . 36
SECTION 5.15 Waiver of Stay or Extension Laws . . . . . . . . . . 36
SECTION 5.16 Duty to Accelerate . . . . . . . . . . . . . . . . . 36
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities . . . . . . . . . 36
SECTION 6.2 Notice of Defaults . . . . . . . . . . . . . . . . . 38
SECTION 6.3 Certain Rights of Trustee . . . . . . . . . . . . . . 38
SECTION 6.4 Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . . . . . . . 39
SECTION 6.5 May Hold Securities . . . . . . . . . . . . . . . . . 40
SECTION 6.6 Money Held in Trust . . . . . . . . . . . . . . . . . 40
SECTION 6.7 Compensation and Reimbursement . . . . . . . . . . . 40
SECTION 6.8 Disqualification; Conflicting Interests . . . . . . . 41
SECTION 6.9 Corporate Trustee Required; Eligibility . . . . . . . 41
SECTION 6.10 Resignation and Removal;
Appointment of Successor . . . . . . . . . . . . . . 41
SECTION 6.11 Acceptance of Appointment by Successor . . . . . . . 43
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . 44
SECTION 6.13 Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . 44
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . . . 44
</TABLE>
vi
<PAGE> 8
<TABLE>
<S> <C>
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . 46
SECTION 7.2 Preservation of Information;
Communications to Holders . . . . . . . . . . . . . . 47
SECTION 7.3 Reports by Trustee . . . . . . . . . . . . . . . . . 48
SECTION 7.4 Reports by Company . . . . . . . . . . . . . . . . . 49
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc.,
Only on Certain Terms . . . . . . . . . . . . . . . . 50
SECTION 8.2 Successor Corporation Substituted . . . . . . . . . . 50
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without
Consent of Holders . . . . . . . . . . . . . . . . . 51
SECTION 9.2. Supplemental Indentures with
Consent of Holders . . . . . . . . . . . . . . . . . 52
SECTION 9.3 Execution of Supplemental Indentures . . . . . . . . 53
SECTION 9.4 Effect of Supplemental Indentures . . . . . . . . . . 53
SECTION 9.5 Conformity with Trust Indenture Act . . . . . . . . . 53
SECTION 9.6 Reference in Securities to
Supplemental Indentures . . . . . . . . . . . . . . 54
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest . . . . . 54
SECTION 10.2 Maintenance of Office or Agency . . . . . . . . . . . 54
SECTION 10.3 Money for Securities Payments
To Be Held in Trust . . . . . . . . . . . . . . . . . 54
SECTION 10.4 Corporate Existence . . . . . . . . . . . . . . . . . 56
SECTION 10.5 Maintenance of Properties . . . . . . . . . . . . . . 56
SECTION 10.6 Payment of Taxes and Other Claims . . . . . . . . . . 56
</TABLE>
vii
<PAGE> 9
<TABLE>
<S> <C>
SECTION 10.7 Limitation on Indebtedness
Secured by a Mortgage . . . . . . . . . . . . . . . . 57
SECTION 10.8 Limitation on Sale and Lease-Back . . . . . . . . . . 58
SECTION 10.9 Statement as to Compliance . . . . . . . . . . . . . 59
SECTION 10.10 Waiver of Certain Covenants . . . . . . . . . . . . . 60
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article . . . . . . . . . . . . . . 60
SECTION 11.2 Election to Redeem; Notice to Trustee . . . . . . . . 60
SECTION 11.3 Selection by Trustee of
Securities to Be Redeemed . . . . . . . . . . . . . . 60
SECTION 11.4 Notice of Redemption . . . . . . . . . . . . . . . . 61
SECTION 11.5 Deposit of Redemption Price . . . . . . . . . . . . . 61
SECTION 11.6 Securities Payable on Redemption Date . . . . . . . . 62
SECTION 11.7 Securities Redeemed in Part . . . . . . . . . . . . . 62
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . 62
SECTION 12.2 Satisfaction of Sinking Fund
Payments with Securities . . . . . . . . . . . . . . 63
SECTION 12.3 Redemption of Securities for Sinking Fund . . . . . . 63
ARTICLE XIII
DEFEASANCE
SECTION 13.1 Applicability of Article . . . . . . . . . . . . . . 63
SECTION 13.2. Defeasance upon Deposit of Moneys or
U.S. Government Obligations . . . . . . . . . . . . . 64
SECTION 13.3. Deposited Moneys and U.S. Government
Obligations to Be Held in Trust . . . . . . . . . . . 66
SECTION 13.4 Reinstatement . . . . . . . . . . . . . . . . . . . . 66
SECTION 13.5 Repayment to Company . . . . . . . . . . . . . . . . 66
</TABLE>
- -------------------------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of the Indenture.
viii
<PAGE> 10
INDENTURE
THIS INDENTURE, is dated as of ___________________, 1997 between A. H.
Belo Corporation, a Delaware corporation (herein called the "Company") and
_____ ___________________________________, a _________________________ as
Trustee (herein called the "Trustee").
RECITALS:
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 collectively
called the "Securities" or in the singular, a "Security"), 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 any
series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture and any indenture supplemental
hereto, 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 as of the date of this Indenture;
(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 at the date of such computation; and
<PAGE> 11
(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 in Article Six, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means, with respect to the Securities of any
series, any Person authorized by the Trustee to act on behalf of the Trustee to
authenticate the Securities of such series.
"Board of Directors" means either the board of directors of the Company
or a duly authorized committee of such board, including but not limited to, the
Special Finance Committee or any successor committee thereto.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of Dallas,
State of Texas or The City of New York, State of New York, are authorized or
obligated by law or regulation to close.
"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.
"Company" means the Person named as the "Company" in the first paragraph
of this Indenture 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" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President
and Chief Executive Officer, 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.
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"Consolidated Subsidiary" means at any date any Subsidiary the accounts
of which are consolidated with those of the Company as of such date for public
financial reporting purposes.
"Consolidated Net Tangible Assets" has the meaning specified in Section
10.7.
"Corporate Trust Office" means the principal office of the Trustee in
___________________ at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Indenture is located at _______________________________.
"corporation" includes corporations, associations, business trusts,
joint-stock companies, limited liability companies, joint ventures, general
partnerships and limited partnerships.
"Currency" means Dollars or Foreign Currency.
"Depository" means unless otherwise specified by the Company pursuant to
either Sections 2.3 or 3.1, with respect to Securities of any series issuable
or issued as a Global Security, The Depository Trust Company, New York, New
York, or any successor thereto registered under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation.
"Discharged" has the meaning specified in Section 13.2.
"Dollar" or "$" means the currency of the United States that at the time
of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"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 5.1.
"Fixed Rate Security" means a Security which provides for the payment of
interest at a fixed rate.
"Floating Rate Security" means a Security which provides for the payment
of interest at a variable rate determined periodically by reference to an
interest rate index specified pursuant to Section 3.1.
"Foreign Currency" means a currency issued by the government of any
country other than the United States or a composite currency the value of which
is determined by reference to the values of the currencies of any group of
countries.
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"Funded Debt" has the meaning specified in Section 10.8.
"Global Security" means a Security issued to evidence all or a part of
any series of Securities which is executed by the Company and authenticated and
delivered by the Trustee to the Depository or pursuant to the Depository's
instruction, all in accordance with this Indenture and pursuant to a Company
Order, which shall be registered as to principal and interest in the name of
the Depository or its nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" has the meaning specified in Section 10.7.
"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 3.1.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal or, in the
case of an Original Issue Discount Security, the principal amount payable upon
a declaration of acceleration pursuant to Section 5.2, becomes due and payable
as therein or herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
"Mortgage" has the meaning specified in Section 10.7.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount" shall have the same meaning as such term is
given in Section 1273 of the Internal Revenue Code of 1986, as amended, or any
successor provision thereto.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon the
declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Outstanding", when used with respect to Securities or any series of
Securities, means, as of the date of determination, all Securities or all
Securities of such series, as the case may be, theretofore authenticated and
delivered under this Indenture, except:
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(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company; provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Securities
have given, made or taken any request, demand, authorization, direction,
notice, consent, waiver or other action hereunder as of any date, (a)
the principal amount of an Original Issue Discount Security which shall
be deemed to be Outstanding shall be the amount of the principal thereof
which would be due and payable as of such date upon acceleration of the
Maturity thereof to such date pursuant to Section 5.2, (b) if, as of
such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, then the principal amount of such Security
which shall be deemed to be Outstanding shall be the amount as specified
or determined as contemplated shall be the amount as specified or
determined as contemplated by Section 3.1, (c) the principal amount of a
Security denominated in one or more foreign currencies or currency units
which shall be deemed to be Outstanding shall be the U.S. dollar
equivalent, determined as of such date in the manner provided as
contemplated by Section 3.1, of the principal amount of such Security,
(or, in the case of a Security described in Clause (a) or (b) above, of
the amount determined as provided in such Clause), and (d) Securities
owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
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"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"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 3.6 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 any manufacturing or printing plant,
distribution center, warehouse, office building, television station or
transmission facility owned by the Company or any Restricted Subsidiary or any
other property or right owned by or granted to the Company or any Restricted
Subsidiary and used or held for use in the newspaper or television business
conducted by the Company or any Restricted Subsidiary, except for any such
property or right which in the opinion of the Board of Directors of the
Company, as set forth in a Board Resolution adopted in good faith, is not of
material importance to the total business conducted by the Company and its
Restricted Subsidiaries considered as one enterprise.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, 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 Subsidiary" has the meaning specified in Section 10.7.
"Sale and Lease-Back Transaction" has the meaning specified in Section
10.8.
"Securities" or "Security" has the meaning stated in the first recital
of this Indenture and more particularly means any Securities or Security
authenticated and delivered under this Indenture.
"Security Register" has the meaning specified in Section 3.5.
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"Significant Subsidiary" has the meaning specified in Section 5.1.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which an amount equal to the principal of
such Security or an installment of principal thereof or interest thereon is due
and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such with respect
to one or more series of Securities pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean and include each Person who
is then a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" shall mean and include each such Person, and "Trustee," as
used with respect to the Securities of any series, shall mean the Trustee with
respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 9.5.
"United States" means the United States of America (including the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction.
"United States Alien" means any person who, for United States Federal
income tax purposes, is a foreign corporation, a nonresident alien individual,
a nonresident fiduciary of a foreign estate or trust, or a foreign partnership
one or more members of which is, for United States Federal income tax purposes,
a foreign corporation, a nonresident alien individual or a nonresident alien
fiduciary of a foreign estate or trust.
"U.S. Government Obligations" has the meaning specified in Section 13.2.
"Value" has the meaning set forth in Section 10.8.
"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".
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SECTION 1.2 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.
Every certificate (other than any Officers' Certificate delivered
pursuant to Section 10.9) or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company 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 may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of
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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.
Any certificate or opinion of an officer or opinion of counsel may be
based, insofar as it relates to any accounting matters, upon a certificate or
opinion of, or representations by, an accountant or firm of accountants in the
employ of the Company, unless such officer or counsel, as the case may be,
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such accounting matters are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
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 1.4 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 a specified percentage of Holders of one or more series then
Outstanding may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments is or are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(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. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
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(d) The Company may fix a record date for the purpose
of determining the identity of the Holders entitled to participate in any Act
authorized or permitted under this Indenture, which record date shall be the
later of (i) 10 days prior to the first solicitation of the written instruments
required for such Act or (ii) the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation pursuant to Section 7.1.
If such a record date is fixed, the Persons who were the Holders of the
Securities of the affected series at the close of business on such record date
(or their duly authorized proxies) shall be the only Persons entitled to
execute written instruments with respect to such Act, or to revoke any written
instrument previously delivered, whether or not such Persons shall continue to
be Holders of the Securities of such series after such record date. No such
written instrument shall be valid or effective for more than 150 days after
such record date.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 1.5 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 if made, given, furnished or
filed in writing to or with 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 mailed, first-class postage
prepaid, to the Company addressed to the attention of its Secretary at
__________________________________, or at any other address previously
furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English language.
SECTION 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice provided, however, that, in any case, any notice to
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Holders of Floating Rate Securities regarding the determination of a periodic
rate of interest, if such notice is required pursuant to Section 3.1, shall be
sufficiently given if given in the manner specified pursuant to Section 3.1.
In any case where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.7 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by the Trust Indenture Act, the imposed duties shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provisions shall
be deemed to apply to this Indenture as so modified or excluded, as the case
may be.
SECTION 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.10 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.
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SECTION 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12 Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York except as may be otherwise
required by mandatory provisions of law.
SECTION 1.13 Legal Holidays.
Unless otherwise specified pursuant to Section 3.1, in any case where
the due date of interest on or principal of any Security or the date fixed for
redemption of any Security shall not be a Business Day then (notwithstanding
any other provision of this Indenture or of the Securities) payment of interest
or principal (and premium, if any) need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on such due date or Redemption Date; provided that no interest shall
accrue for the period from and after such prior date.
SECTION 1.14 Incorporators, Stockholders, Officers and Directors Exempt from
Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such, or against
any past, present or future stockholder, officer or director, as such, of the
Company or of any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
The Securities of each series shall be in substantially the form or
forms (including global form) as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and
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other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange or
all as may, consistently herewith, be determined by the officers executing such
Securities to be necessary or appropriate, as evidenced by their execution of
the Securities. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action together with a true and correct copy of the form of the Securities
of such series approved by or pursuant to such Board Resolution shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed, or engraved on
steel engraved borders, or word processed or may be produced in any other
manner, provided, that such method is permitted by the rules of any securities
exchange on which such securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be
in substantially the following form:
This is one of the Securities of the series designated pursuant to the
within-mentioned Indenture.
- ----------------------------------- -------------------------------------
as Trustee as Trustee
OR
By: By:
-------------------------------- ---------------------------------
Authorized Officer As Authenticating Agent
By:
---------------------------------------
Authorized Officer
SECTION 2.3 Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Section
3.1 that the Securities of a particular series are to be issued in whole or in
part in the form of one or more Global Securities, then the Company shall
execute and the Trustee shall, in accordance with Section 3.3 and the Company
Order delivered to the Trustee thereunder, authenticate and
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deliver, such Global Security or Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Securities of such series to be represented by such Global
Security or Securities, (ii) shall be registered in the name of the Depository
for such Global Security or Securities or its nominee, (iii) shall be delivered
by the Trustee to the Depository or pursuant to the Depository's instruction
and (iv) shall bear a legend substantially to the following effect: THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
(b) Notwithstanding any other provision of this Section
2.3 or of Section 3.5, unless otherwise provided in the Global Security, a
Global Security may be transferred, in whole but not in part and in the manner
provided in Section 3.5, only to the Depository or another nominee of the
Depository for such Global Security, or to a successor Depository for such
Global Security selected or approved by the Company or to a nominee of such
successor Depository. Except as provided below, owners solely of beneficial
interests in a Global Security shall not be entitled to receive physical
delivery of the Securities represented by such Global Security and will not be
considered the Holders thereof for any purpose under the Indenture.
(c) (i) If at any time the Depository for a Global
Security notifies the Company that it is unwilling or unable to continue as
Depository for such Global Security or if at any time the Depository for the
Securities for such series shall no longer be eligible or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, the Company shall appoint a successor Depository with
respect to such Global Security. If a successor Depository for such Global
Security is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 3.1(16) shall no longer be effective with respect
to such Global Security and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual
Securities of such series in exchange for such Global Security, will
authenticate and deliver individual Securities of such series of like tenor and
terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such Global Security.
(ii) The Company may at any time and in its sole
discretion determine that the Securities of any series issued or issuable in
the form of one or more Global Securities shall no longer be represented by
such Global Security or Securities. In such event the Company will execute, and
the Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Securities of such series in exchange in whole or in
part for such Global Security, will authenticate and deliver individual
Securities of such series of like
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tenor and terms in definitive form in an aggregate principal amount equal to
the principal amount of such Global Security or Securities representing such
series in exchange for such Global Securities or Securities.
(iii) A Global Security will also be exchangeable
if there shall have occurred and is continuing an Event of Default or an event
which, with the giving of notice or lapse of time or both, would constitute an
Event of Default with respect to the Securities of such series represented by
such Global Security. In such event the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
individual Securities of such series in exchange in whole or in part for such
Global Security, will authenticate and deliver individual Securities of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such Global Security or Securities
representing such series in exchange for such Global Securities or Securities.
(iv) If specified by the Company pursuant to
Section 3.1 with respect to Securities issued or issuable in the form of a
Global Security, the Depository for such Global Security may surrender such
Global Security in exchange in whole or in part for individual Securities of
such series of like tenor and terms in definitive form on such terms as are
acceptable to the Company and such Depository. Thereupon the Company shall
execute, and the Trustee shall authenticate and deliver, without service
charge, (1) to each Person specified by such Depository a new Security or
Securities of the same series of like tenor and terms and of any authorized
denominations as requested by such Person or the Depository in aggregate
principal amount equal to and in exchange for such Person's beneficial interest
in the Global Security; and (2) to such Depository a new Global Security of
like tenor and terms and in a denomination equal to the difference, if any,
between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders thereof.
(v) Upon issuance, all Securities with identical
terms and held by the Depository on behalf of its participants will be
represented by one Global Security and be deposited with the Depository and
registered in the name of a nominee of the Depository. The Company may request
the Trustee at any time to consolidate two or more outstanding Global
Securities having identical terms and for which interest has been paid to the
same date.
(vi) In any exchange provided for in any of the
preceding five paragraphs, the Company will execute and the Trustee will
authenticate and deliver individual fully registered Securities in authorized
denominations, provided that the definitive Securities so issued in exchange
for a Global Security shall be in denominations of $100,000 and any aggregate
principal amount and tenor as the portion of such Global Security to be
exchanged, and provided further that, unless the Company agrees otherwise,
Securities in certificated registered form will be issued in exchange for a
Global Security, or any portion thereof, only if such Securities in
certificated registered form were requested by written notice to the Trustee or
the Securities Registrar by or on behalf of a person who is beneficial owner of
an interest thereof given through the Holder hereof. Except as provided above,
owners of beneficial interest
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in a Global Security will not be entitled to receive physical delivery of
Securities in certificated registered form and will not be considered the
Holders thereof for any purpose under the Indenture. No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. Upon the exchange of a Global Security
for individual Securities, such Global Security shall be cancelled by the
Trustee. Securities issued in exchange for a Global Security pursuant to this
Section 2.3 shall be registered in such names and in such authorized
denominations as the Depository for such Global Security, pursuant to the
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the persons
in whose names such Securities are so registered.
(vii) Members in and participants of the
Depository shall have no rights under the Indenture with respect to any Global
Security held on their behalf by a Depository, and such Depository may be
treated by the Company, the trustee and any agent of the Company or the Trustee
as the owner of such Global Security for all purposes whatsoever.
(d) Any Company Order delivered pursuant to Section 3.3
by the Company with respect to the authentication, exchange, endorsement or
delivery or redelivery of a Global Security shall be in writing, signed by any
one of the officers enumerated under the definition of "Company Order"
contained in Section 1.1 or by any officer authorized by a previously delivered
Company Order, but need not comply with Section 1.2 and need not be accompanied
by an Opinion of Counsel.
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series:
(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 Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for,
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or in lieu of, other Securities of the series pursuant to Sections 2.3,
3.4, 3.5, 3.6, 9.6 or 11.7 and except for Securities which, pursuant to
Section 3.3 are deemed never to have been authenticated and delivered);
(3) the date or dates on which or periods during which the
Securities of the series may be issued and the date or dates on which or
the range of dates within which the principal of (and premium, if any,
on) the Securities of the series are or may be payable;
(4) the rate or rates or the methods of determination thereof
at which the Securities of the series shall bear interest, if any, the
date or dates from which such interest shall accrue and the dates on
which such interest shall be payable and the record date for the
interest payable on any such interest date;
(5) the place or places, if any, in addition to the City of
New York, where, subject to Section 10.2, the principal of (and premium,
if any) and interest on Securities of the series shall be payable, any
Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served;
(6) the period or periods within which or the dates on which,
the price or prices at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company and/or the method by which such period or periods,
dates, price or prices and terms and conditions shall be determined;
(7) the obligation, if any, of the Company to redeem, purchase
or repay 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 or repaid, in whole or in part, pursuant to such obligation
and/or the method by which such period or periods, price or prices or
terms and conditions shall be determined;
(8) provisions, if any, for the defeasance of Securities of
the series;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 5.2 or the method by which such portion shall be determined; and
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(11) if other than Dollars, the Foreign Currency in which
Securities of the series shall be denominated, or in which payment of
the principal of (and premium, if any) and interest on the Securities of
the series may be made or the method by which such Foreign Currency
shall be determined;
(12) if the principal of (and premium, if any) or interest on
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a Currency other than that in which the
Securities are denominated or stated to be payable without such
election, the periods within which and the terms and conditions upon
which, such election may be made and the time and the manner of
determining the exchange rate between the Currency in which the
Securities are denominated or payable without such election and the
Currency in which the Securities are to be paid if such election is
made;
(13) if the amount of payments of principal of (and premium, if
any) or interest on the Securities of the series may be determined with
reference to an index including, but not limited to, an index based on a
Currency or Currencies other than that in which the Securities are
payable, or any other type of index, the manner in which such amounts
shall be determined;
(14) if the Securities of the series are denominated or payable
in a Foreign Currency, any other terms concerning the payment of
principal of (premium, if any) or any interest on such Securities
(including the Currency or Currencies of payment thereof);
(15) any additions to or changes in the Events of Default or
covenants provided for with respect to Securities of the series or any
Events of Default or covenants herein specified which shall not be
applicable to the Securities of the series;
(16) whether the Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities; the
terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for other individual
Securities or for other Global Securities; and the Depository for such
Global Security or Securities;
(17) whether the Securities of the series are to be issuable in
definitive form (whether upon original issuance or upon exchange of a
Temporary Security of the series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
and, if so, the form and terms of such certificates, documents or
conditions;
(18) if the Company will pay additional amounts on any of the
Securities and coupons, if any, of the series to any Holder who is a
United States Alien (including any modification in the definition of
such term), in respect of any tax, assessment or governmental charge
withheld or deducted, under what circumstances and with what procedures
and documentation the Company will pay such additional amounts, whether
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such additional amount will be treated as interest or principal pursuant
to this Indenture, and whether the Company will have the option to
redeem such Securities rather than pay additional amounts (and the terms
of any such option);
(19) any terms applicable to Original Issue Discount, if any,
including the rate or rates at which such Original Issue Discount, if
any, shall accrue;
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto. All Securities of any series need not be
issued at the same time and may be issued from time to time, consistent with
the terms of this Indenture, if so provided by or pursuant to such Board
Resolution and set forth in such Officers' Certificate or in any such indenture
supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.2 Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.1. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof and shall be payable
only in Dollars.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such
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individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order and subject to the provisions hereof shall
authenticate and deliver such Securities. If the form or terms of the
Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Opinion
of Counsel stating that:
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Securities
conform to the requirements of this Indenture and constitute sufficient
authority hereunder for the Trustee to authenticate and deliver such
Securities;
(2) the form of such Securities has been established in
conformity With the provisions of this Indenture;
(3) the terms of such Securities have been established in
conformity with the provisions of this Indenture;
(4) in the event that the form or terms of such Securities
have been established in a supplemental indenture, the execution and
delivery of such supplemental indenture have been duly authorized by all
necessary corporate action of the Company, such supplemental indenture
has been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, is a valid and
binding obligation enforceable against the Company in accordance with
its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforce
ability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(5) the execution and delivery of such Securities have been
duly authorized by all necessary corporate action of the Company and
such Securities have been duly executed by the Company and, assuming due
authentication by the Trustee and delivery by the Company, are the valid
and binding obligations of the Company enforceable against the Company
in accordance with their terms, entitled to the benefit of the
Indenture, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforceability,
to general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law); and
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(6) the amount of Outstanding Securities of such series,
together with the amount of such Securities, does not exceed any limit
established under the terms of this Indenture on the amount of
Securities of such series that may be authenticated and delivered.
In the event that all Securities of a series are not issued at the same
time, the Trustee shall authenticate and deliver the Securities of such series
executed and delivered by the Company for original issuance upon receipt of an
order of the Company (which need not comply with Section 1.2 hereof), signed by
an officer or employee of the Company identified to the Trustee in an Officers'
Certificate, if the Trustee has previously received the Company Order and
Opinion of Counsel referred to in the third paragraph of this Section 3.3 with
respect to the issuance of any Securities of such series.
The Trustee shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
SECTION 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed, word processed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal
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amount of definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
The Company or the Trustee shall keep a register (the "Security
Register") in which, subject to such reasonable regulations as the Company or
the Trustee may prescribe, the Company or the Trustee shall provide for the
registration of Securities and of transfers of Securities.
Upon surrender for registration of transfer of any Security of any
series at the office or agency designated by the Company for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, subject to Section 2.3, Securities of any
series may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company or any registrar with respect to such series of
Securities, 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 or the Trustee 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 3.4, 9.6 or 11.7 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 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption
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under Section 11.3 and ending at the close of business on the day of such
mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
None of the Company, the Trustee, any Paying Agent or the Securities
Registrar will have any responsibility or liability for any aspect of the
Depository's records relating to or payment made on account of beneficial
ownership interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Company or to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security 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 has been acquired by a bona fide
purchaser, the Company shall execute and upon the Company's request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any interest payment date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the record date (as hereinafter defined) for such
interest notwithstanding the cancellation of such Security upon the
registration of transfer or exchange subsequent to the record date and prior to
such interest payment date; provided, however, that if and to the extent that
the Company shall default in the payment of the interest due on such interest
payment date, such defaulted interest shall be paid to the Persons in whose
names outstanding Securities are registered at the close of business on a
subsequent record date established by notice given by mail by and on behalf of
the Company to the Holders of Securities not less than fifteen days preceding
such subsequent record date, such record date to be not less than ten days
preceding the date of payment of such defaulted interest. The term "record
date" as used in this Section 3.7 with respect to any regular interest payment
date shall mean such day preceding such interest payment date as may have been
established as the record date with respect to an interest payment date for
Securities of such series in a Board Resolution in accordance with Section 3.1
hereof. The Company may also make payment of any defaulted interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange in which the 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 sentence, such manner of payment shall
be deemed practicable by the Trustee.
SECTION 3.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 3.7) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 3.9 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it; provided, however, that if surrendered
to any Authenticating Agent, such Securities shall be promptly cancelled by
such Authenticating Agent and forwarded to the Trustee. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly
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permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of as directed by a Company Order; provided that the Trustee shall
not be required to dispose of securities in a manner deemed impracticable by
the Trustee.
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
SECTION 3.11 Currency of Payments in Respect of Securities.
(a) Except as otherwise specified pursuant to Section
3.1, payment of the principal of (and premium, if any) and interest on
Securities of any series will be made in Dollars.
(b) For purposes of any provision of the indenture
where the Holders of Outstanding Securities may perform an Act which requires
that a specified percentage of the Outstanding Securities of all series perform
such Act and for purposes of any decision or determination by the Trustee of
amounts due and unpaid for the principal (and premium, if any) and interest on
the Securities of all series in respect of which moneys are to be disbursed
ratably, the principal of (and premium, if any) and interest on the Outstanding
Securities denominated in a Foreign Currency will be the amount in Dollars
based upon exchange rates determined as specified pursuant to Section 3.1 for
Securities of such series, as of the date for determining whether the Holders
entitled to perform such Act have performed it, or as of the date of such
decision or determination by the Trustee, as the case may be.
SECTION 3.12 Judgments.
The Company may provide pursuant to Section 3.1 for Securities of any
series that the obligation, if any, of the Company to pay the principal of (and
premium, if any) and interest on the Securities of any series in a Foreign
Currency or Dollars (the "Designated Currency") as may be specified pursuant to
Section 3.1 is of the essence and thereby agree that, to the fullest extent
possible under applicable law, judgments in respect of such Securities shall be
given in the Designated Currency. In such event, the obligation of the Company
to make payments in the Designated Currency of the principal of (and premium,
if any) and interest on such Securities shall, notwithstanding any payment in
any other Currency (whether pursuant to a judgment or otherwise), be discharged
only to the extent of the amount of the Designated Currency that the Holder
receiving such payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other Currency (after any premiums and cost
of exchange) on the Business Day in the country of issue of the Designated
Currency immediately following the day on which such Holder receives such
payment. If the amount in the Designated Currency that may be so purchased for
any reason falls short of the amount originally due, the Company shall pay such
additional amounts as may be necessary to compensate for such shortfall, and
any
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obligation of the Company not discharged by such payment shall be due as a
separate and independent obligation and, until discharged as provided herein,
shall continue in full force and effect.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture, with respect to the Securities of any series (if all
series issued under this Indenture are not to be affected), shall upon Company
Request cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided
in Section 3.6 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their stated
maturity within one year, or
(iii) if the Securities of such series are
denominated and payable only in Dollars (except as
provided pursuant to Section 3.1) and such Securities 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 Dollars (except as provided pursuant
to Section 3.1) sufficient to pay and discharge the entire
indebtedness on
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such Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the
stated maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; 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 this Indenture have been complied with.
In the event there are Securities of two or more series hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and
discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 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 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment,
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decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when due and payable as therein or
herein provided whether at its maturity or upon acceleration, redemption
or otherwise; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section 5.1 specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the failure to pay when due any indebtedness for money
borrowed (including indebtedness under Securities other than that
series) with a principal amount then outstanding in excess of
$20,000,000 under any mortgage, indenture or instrument under which any
such indebtedness is issued or secured (including the Indenture), or any
other default which results in the acceleration of maturity of such
indebtedness, unless such indebtedness or acceleration shall have been
discharged or annulled within 10 days after due notice by the Trustee or
by Holders of at least 10% in principal amount of the Outstanding
Securities of that series; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law now or hereafter in effect or (B) a decree or order
adjudging the Company or any Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company or any Significant Subsidiary under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company
or a Significant Subsidiary or of any substantial part of its property,
or ordering the winding up or liquidation of its
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affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company or any Significant
Subsidiary of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law now or hereafter in effect or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Company or
any Significant Subsidiary to the entry of a decree or order for relief
in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company or any Significant
Subsidiary, or the filing by the Company or any Significant Subsidiary
of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law now or hereafter in effect, or
the consent by the Company or any Significant Subsidiary to the filing
of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or any Significant Subsidiary or of any
substantial part of the property of the Company or any Significant
Subsidiary, or the making by the Company or any Significant Subsidiary
of an assignment for the benefit of creditors, or the Company or any
Significant Subsidiary shall fail generally to pay its debts as they
become due, or the taking of corporate action by the Company or any
Significant Subsidiary in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
For purposes of this Section 5.1 the term "Significant Subsidiary" shall
mean any Subsidiary (i) which, as of the close of the fiscal year of the
Company immediately preceding the date of any determination hereunder,
contributed more than 10% of the consolidated net operating revenues of the
Company and its Consolidated Subsidiaries, or (ii) the total net tangible
assets of which as of the close of such immediately preceding fiscal year
exceeded 10% of the Consolidated Net Tangible Assets of the Company and its
Consolidated Subsidiaries.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in Section 5.01(6)
or (7), occurs and is continuing, then in every such case, unless the principal
of all of the Securities of such series shall have already become due and
payable, the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series may declare the principal amount (or,
in the case of certain Securities which provide for less than the entire
principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to this Section 5.2, such portion
of the principal amount as may be specified in the terms of that series of
Securities) and the interest accrued thereon of all of the Securities of that
series to be due and
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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) and interest accrued thereon shall become immediately due and
payable. If an Event of Default specified in Section 5.01(6) or (7) occurs and
is continuing, the principal amount (or portion thereof) of all the Securities
of that series shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders.
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
in the Currency in which such Securities are denominated (except as
otherwise provided pursuant to Section 3.1) 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) 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 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration shall have been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof
as shall be due and payable as a result of such declaration; and payment of the
portion of the principal thereof as shall have become due and payable as a
result of such declaration, together with interest, if
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any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days;
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security when due and payable whether at its
maturity or upon acceleration, redemption or otherwise; or
(3) default is made in the deposit of any sinking fund payment
when and as due by the terms of any Security,
then the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on
such Securities for principal (and premium, if any) and interest, interest on
any overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue interest,
at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name 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 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, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
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 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding
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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:
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest 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
(2) 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 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 6.7.
Subject to the provisions of Article Eight of this Indenture, 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
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 5.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
In any proceeding brought by the Trustee (and also in any proceeding
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities in respect to which action was
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taken, and it shall not be necessary to make any Holders of such Securities
parties to any such proceedings.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7;
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest on the Securities in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal (and premium, if any) and interest, respectively;
and
THIRD: To the Company.
SECTION 5.7 Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a custodian, liquidator, assignee,
sequestrator, receiver, trustee, or other similar official, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred by the Trustee in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
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(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;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holder or Holders of any other series, or to obtain or to seek to obtain
priority or preference over any other 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 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 3.7)
interest on such Security on the due dates 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 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.6, 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.
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SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or bylaw
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 5.12 Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee shall have determined that the action so
directed would not be unjustly prejudicial to the Holders of any
Securities of any series with respect to which the Trustee is the
Trustee not taking part in such direction,
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(4) the Trustee shall be indemnified as hereinafter provided.
SECTION 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series 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 on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
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, 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
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 on any
Security on or after the due dates expressed in such Security (or, in the case
of redemption, on or after the Redemption Date).
SECTION 5.15 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 exercise of
any power herein granted to the Trustee, but will suffer and permit the
exercise of every such power as though no such law had been enacted.
SECTION 5.16 Duty to Accelerate.
The Trustee shall be under no duty to accelerate the debt hereunder or
to institute any proceedings unless it knows or in the exercise of reasonable
diligence should have known of the existence of an Event of Default hereunder.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default with respect to Securities of any series,
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(1) the Trustee undertakes to perform, with
respect to Securities of such series, 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, with respect to Securities of such series,
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 provisions 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 with respect to
Securities of any series has occurred and is continuing, the Trustee shall
exercise, with respect to Securities of such series, 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 willful 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 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
pursuant to the provisions of Section 5.12 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
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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 6.2 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear
in the Security Register, notice 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) 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 a trust committee of directors or Responsible Officers of the Trustee
in good faith determine that the withholding of such notice is in the interest
of the Holders of Securities of such series; and provided, further, that in the
case of any default of the character specified in Section 5.1(4) with respect
to the Securities of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of
such series.
SECTION 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
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(4) before the Trustee acts or refrains from acting, 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;
(5) 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;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such matters of fact as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) except for (i) a default under Sections 5.1 (1), (2) or
(3) hereof or (ii) any other event of which the Trustee has "actual
knowledge" and which event, with the giving of notice or the passage of
time or both, would constitute an Event of Default under this Indenture,
the Trustee shall not be deemed to have notice of any default or Event
of Default with respect to Securities of any series at the time
Outstanding unless specifically notified in writing of such event by the
Company or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series; as used herein, the term "actual
knowledge" means the actual fact or state of knowing, without any duty
to make any investigation with regard thereto.
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
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SECTION 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent or such agent.
SECTION 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law and except as otherwise
provided herein. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.7 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation in Dollars 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 for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
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SECTION 6.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, an subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
SECTION 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with respect to each
series of Securities which shall be eligible to serve in such capacity under
the Trust Indenture Act and having a combined capital and surplus (with its
direct parent) of at least $500,000,000. If such corporation or other 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 other
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. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
6.9, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 6.10 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 6.11.
(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 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to such series.
(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.
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(d) If at any time:
(1) the Trustee shall fail to comply with
Section 6.8(a) after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security of
the series as to which the Trustee has a conflicting interest for
at least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii)
subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Securities
of one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. 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 6.11, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders of Securities of
such series and accepted appointment in the manner required by Section 6.11,
any Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
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(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 mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 6.11 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 co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any act or failure to act on the part of any
other Trustee hereunder; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such successor
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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, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates.
(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 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion, or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 6.14 Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee
to authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.6 and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Whenever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee
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or the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery by an Authenticating Agent and a
certificate of authentication executed by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having (together with its
direct parent) a combined capital and surplus of not less than $500,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section 6.14, 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 6.14, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 6.14.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 6.14, without the execution or filing of any paper or any
further act on the part of the Trustee or Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities 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 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 6.14.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 6.14, and the
Trustee shall be entitled to be reimbursed for such payments.
The provisions of Sections 3.08, 6.04 and 6.05 shall be applicable to
each Authenticating Agent.
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Pursuant to each appointment made under this Section 6.14, the
Securities of each series covered by such appointment 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 referred
to in the within-mentioned Indenture.
---------------------------------------------
As Authenticating Agent
By:
-------------------------------------------
Authorized Signature
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not more than 15 days after each
record date with respect to a regular interest payment date for each
series of Securities, a list, in such form as the Trustee may reasonably
require, containing all the information in the possession and control of
the Company or of its paying agents regarding the names and addresses of
the Holders of such series as of such record date; provided, however,
that if Securities of any series shall have more than two regular
interest payment dates in each calendar year or shall not bear interest,
then such list with respect to such series of Securities will be
furnished to the Trustee semi-annually on such dates as may be agreeable
to the Trustee; and
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished; except that if the
Trustee is the sole registrar with respect to any series of Securities,
no such list need be furnished with respect to such series.
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SECTION 7.2 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 contained in the
most recent list furnished to the Trustee as provided in Section 7.1 and the
names and addresses of Holders received by the Trustee in its capacity as sole
Security Registrar, if so acting. The Trustee may destroy any list furnished
to it as provided in Section 7.1 upon receipt of a new list so furnished.
(b) If three or more Holders (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 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
with respect to their rights under this Indenture or under the 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
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section 7.2(a),
or
(2) inform such applicants as to the approximate number
of Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 7.2(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 whose name and address appears in the information preserved
at the time by the Trustee in accordance with Section 7.2(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 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.
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(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 7.2(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 7.2(b).
SECTION 7.3 Reports by Trustee.
(a) Within 60 days after _________________________ of each
year commencing with the year 199____, the Trustee shall transmit by mail to
all Holders, as their names and addresses appear in the Security Register, a
brief report dated as of such ________________ with respect to any of the
following events which may have occurred within the previous 12 months (but if
no such event has occurred within such period, no report need be transmitted):
(1) its eligibility under Section 6.9 and its
qualifications under Section 6.8, or in lieu thereof, if to the best of
its knowledge it has continued to be eligible and qualified under said
Sections, a written statement to such effect;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of Section 6.8(c);
(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 the trust
estate or 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) 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 6.13(b)(2), (3),
(4) or (6);
(5) 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
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(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, or the Securities of
any series, except action in respect of a default, notice of which has
been or is to be withheld by the Trustee in accordance with Section 6.2.
(b) The Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Security Register, 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 the trust estate or 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 stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 7.4 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, as amended (the
"Exchange Act"); 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 Exchange Act 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
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conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, 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
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or
into which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of
the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America,
any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest on all
the Securities and the due and punctual performance and observance of
every covenant and obligation of the Company under this Indenture to be
performed or observed;
(2) immediately after giving effect to such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 8.2 Successor Corporation Substituted.
Upon any consolidation of the Company with or merger of the Company into
any other corporation or any conveyance, transfer or lease of the properties
and assets of the Company
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substantially as an entirety in accordance with Section 8.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein, and thereafter, except in the case of a lease of
its properties and assets substantially as an entirety, the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more 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; or
(2) to add to the covenants, agreements and obligations
of the Company for the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the benefit of less than
all series of Securities, stating that such covenants are expressly
being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if
such Events of Default are to be applicable to less than all series,
stating such Events of Default are expressly being included solely to be
applicable to such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable as to principal,
and with or without interest coupons; or
(5) to add to, change or eliminate any of the
provisions of this Indenture, in respect of one or more series of
Securities, provided that any such addition, change or elimination (A)
shall neither (i) apply to any Security of any series created prior to
the execution of such supplemental indenture and entitled to the benefit
of such provision nor (ii) modify the rights of the Holder of any such
Security with respect to
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such provision or (B) shall become effective only when there is no such
Security Outstanding; or
(6) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; or
(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 6.11(b); or
(8) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such action shall not
adversely affect the interest of the Holders of Securities of any series
in any respect.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of at least a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the due date 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 redemption thereof, or reduce the amount of the principal
of any Security that would be due and payable upon a declaration of the
maturity thereof pursuant to Section 5.2, or change the place of payment
where, or the coin or Currency in which, any Security or any premium or
the interest thereon is denominated or payable (or, in the case of
certain Securities which provide for less than the entire principal
amount thereof to be due and payable upon a declaration of acceleration
of the maturity thereof pursuant to Section 5.2, reduce the amount of
principal payable upon such a declaration of acceleration of the
maturity thereof), or impair the right to institute suit for the
enforcement of any such payment on or after the due date thereof (or, in
the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage of the principal amount of
the Outstanding Securities of any series, the consent of whose Holders
is required for any such
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supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section,
Section 5.13 or Section 10.10, except to increase any such percentage or
to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby.
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 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.5 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.
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SECTION 9.6 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 10.2 Maintenance of Office or Agency.
The Company will maintain in the City of New York, for any series of
Securities, an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices to and
demands upon the Company in respect of the Securities of that series and this
Indenture may be served. Unless otherwise designated by the Company in a
written notice to the Trustee, such office or agency for all purposes shall be
the Corporate Trust Office of the Trustee. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee in the City of New
York, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
SECTION 10.3 Money for Securities Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
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so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest 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 Paying Agent will promptly notify the Trustee
of the Company's 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) or interest 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 the
making of any payment of principal (and premium, if any) or interest 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 discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for
three years after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease;
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provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 10.4 Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and the rights (charter and statutory)
and franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries
considered as a whole.
SECTION 10.5 Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation and maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the
judgment of the Board of Directors, desirable in the conduct of its business or
the business of any Subsidiary and not disadvantageous in any respect to the
Holders.
SECTION 10.6 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings and the Company shall have set aside on its books
adequate reserves with respect thereto (segregated to the extent required by
generally accepted accounting principles).
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SECTION 10.7 Limitation on Indebtedness Secured by a Mortgage.
So long as the Securities of any series shall remain Outstanding, the
Company covenants and agrees that neither it nor any Restricted Subsidiary will
create, assume, guarantee or suffer to exist any Indebtedness secured by a
Mortgage on any assets of the Company or any Restricted Subsidiary unless the
Company secures or causes such Restricted Subsidiary to secure the Securities
of that series equally and ratably with, or prior to, such secured
Indebtedness; provided, however, that this restriction shall not apply to
Indebtedness secured by:
(a) Mortgages on the property of any corporation which
Mortgages existed at the time such corporation became a Restricted
Subsidiary,
(b) Mortgages in favor of the Company or a Restricted
Subsidiary,
(c) Mortgages on property of the Company or a Restricted
Subsidiary in favor of the United States of America or any State or
political subdivision thereof, or in favor of any other country or any
political subdivision thereof, to secure payment pursuant to any
contract or statute or to secure any indebtedness incurred for the
purpose of financing all or any part of the purchase price or the cost
of the construction or improvement of the property subject to such
Mortgages,
(d) Mortgages on any property hereafter acquired by the
Company or any Restricted Subsidiary, contemporaneously with such
acquisition or within 120 days thereafter, to secure or provide for the
payment of any part of the purchase price, construction or improvement
of such property, or Mortgages assumed by the Company or any Restricted
Subsidiary upon any property hereafter acquired by the Company or any
such Restricted Subsidiary which were existing at the time of such
acquisition, provided that the amount of any Indebtedness secured by any
such Mortgage created or assumed shall not exceed the cost to the
Company or such Restricted Subsidiary, as the case may be, of the
property covered by such Mortgage,
(e) Mortgages on the property of the Company or a Restricted
Subsidiary which are in existence on the date of issuance of the first
series of Securities under this Indenture,
(f) any extension, renewal or refunding (or successive
extension, renewal or refunding), in whole or in part, of any Mortgage
referred to in the foregoing clauses (a) through (e), inclusive, or of
any Indebtedness secured thereby, and
(g) any other Mortgage, other than Mortgages referred to in
the foregoing clauses (a) through (f), inclusive, so long as the
aggregate of all Indebtedness secured by Mortgages pursuant to this
clause (g) and the aggregate Value of the Sale and Lease-Back
Transactions in existence at such time (not including Sale and
Lease-Back Transactions
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as to which the Company has complied with Section 10.8(b)) does not
exceed 15% of Consolidated Net Tangible Assets.
For purposes of this Section 10.7 and Section 10.8 the following terms
shall have the following meanings:
(1) "Indebtedness" means (i) all items which in
accordance with generally accepted accounting principles would be
included in determining long-term liabilities representing borrowed
money or purchase money obligations as shown on the liability side of a
balance sheet (other than liabilities evidenced by obligations under
leases and contracts payable for broadcast rights), (ii) to the extent
not included in clause (i) above, indebtedness secured by any Mortgage
existing on property owned subject to such Mortgage whether or not the
indebtedness secured thereby shall have been assumed, and (iii) to the
extent not included in clauses (i) or (ii) above, contingent obligations
in respect of, or to purchase or otherwise acquire, any indebtedness of
others of the character described in clauses (i) and (ii) above
including, but not limited to, guarantees and endorsements (other than
for purposes of collection in the ordinary course of business of any
such indebtedness);
(2) "Mortgage" means and includes any mortgage, pledge,
lien, security interest, conditional sale or other title retention
agreement or other similar encumbrance;
(3) "Consolidated Net Tangible Assets" means total
consolidated assets of the Company and its Restricted Subsidiaries, less
(i) current liabilities of the Company and its Restricted Subsidiaries,
and (ii) the net book amount of all intangible assets of the Company and
its Restricted Subsidiaries.
(4) "Restricted Subsidiary" means each Subsidiary of
the Company as of the date hereof and each Subsidiary thereafter created
or acquired (unless expressly excluded by resolution of the Board of
Directors of the Company adopted before, or within 120 days following,
such creation or acquisition).
SECTION 10.8 Limitation on Sale and Lease-Back.
The Company covenants and agrees that neither it nor any Restricted
Subsidiary will enter into any arrangement with any Person (other than the
Company or a Restricted Subsidiary), or to which any Person is a party,
providing for the leasing to the Company, or a Restricted Subsidiary, for a
period, including renewals, of more than three years of any Principal Property
which has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person or to any other Person (other than the
Company or a Restricted Subsidiary) to which funds have been or are to be
advanced by such Person on the security of such leased property (in this
Article Ten called a "Sale and Lease-Back Transaction") unless either:
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(a) The Company or such Restricted Subsidiary would be
entitled to create, assume, guarantee or suffer Indebtedness secured by
a Mortgage under any provision of clauses (a) through (e) of Section
10.7 or, pursuant to the provisions of Section 10.7, to incur
Indebtedness in a principal amount equal to or exceeding the Value of
such Sale and Lease-Back Transaction, secured by a Mortgage on the
property to be leased, without equally and ratably securing the
Securities; or
(b) The Company or such Restricted Subsidiary within four
months after the effective date of such Sale and Lease-Back Transaction
(whether made by the Company or a Restricted Subsidiary), applies to the
voluntary retirement of Indebtedness of the Company (which may include
Securities, provided that any series of Securities may only be redeemed
in accordance with the terms of such series) maturing by the terms
thereof more than one year after the original creation thereof and
ranking at least pari passu with the Securities (hereinafter in this
Section called "Funded Debt") an amount equal to the greater of (i) the
net proceeds of the sale of the property subject to the Sale and
Lease-Back Transaction and (ii) the Value of such Sale and Lease-Back
Transaction, less the principal amount of Securities delivered within
four months after the effective date of such arrangement, to the Trustee
for retirement and cancellation and the principal amount of other Funded
Debt voluntarily retired by the Company within such four-month period,
excluding retirements of Securities and other Funded Debt as a result of
conversions or pursuant to mandatory sinking fund or prepayment
provisions or by payment at maturity.
For purposes of Section 10.7 and this Section 10.8, the term "Value"
shall mean, with respect to a Sale and Lease-Back Transaction, as of any
particular time, the amount equal to the greater of (1) the net proceeds of the
sale or transfer of the property leased pursuant to such Sale and Lease-Back
Transaction or (2) the fair value in the opinion of the Board of Directors of
such property at the time of entering into such Sale and Lease-Back
Transaction, in either case divided first by the number of full years of the
terms of the lease and then multiplied by the number of the full years of such
term remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
SECTION 10.9 Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, an Officers' Certificate (executed by at least the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company) stating whether or not to the best knowledge
of the signers thereof the Company is in default in the performance and
observance of any of the Company's covenants and agreements contained in this
Indenture and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
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SECTION 10.10 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 10.4 to 10.8, inclusive, with
respect to the Securities of any series if before or after the time for such
compliance the Holders of a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instances 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.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 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 3.1 for Securities of any
series) in accordance with this Article.
SECTION 11.2 Election to Redeem; Notice to Trustee.
In case of any redemption at the election of the Company of less than
all 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), notify 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 11.3 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 denominations 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
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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.
SECTION 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Securities
to be redeemed;
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be redeemed and,
if applicable, that interest thereon will cease to accrue on and after
said date;
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price; and
(6) that the redemption is for a sinking fund, if such
is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.5 Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be the date for an installment of interest) accrued interest on, all
the Securities which are to be redeemed on that date.
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SECTION 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose due date 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 date with
respect to such installments of interest according to their terms and the
provisions of Section 3.7. If any Security called for redemption shall not be
so paid upon surrender thereof for redemption, the principal (and premium, if
any) shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 11.7 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a specified place of payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series, 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.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 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
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reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to 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 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 12.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the
Trustee), 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 the series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency in which the Securities of such
series are denominated (except as provided pursuant to Section 3.1) and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.2 and, prior to or
concurrently with the delivery of such Officers' Certificate, will also deliver
to the Trustee any Securities to be so delivered. Not less than 45 days before
each sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
11.3 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 11.4. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
DEFEASANCE
SECTION 13.1 Applicability of Article.
If pursuant to Section 3.1 provision is made for the defeasance of
Securities of a series, and if the Securities of such series are denominated
and payable only in Dollars (except as provided pursuant to Section 3.1) then
the provisions of this Article shall be applicable except
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as otherwise specified as contemplated by Section 3.1 for Securities of such
series. Defeasance provisions, if any, for Securities denominated in a Foreign
Currency may be specified pursuant to Section 3.1.
SECTION 13.2. Defeasance upon Deposit of Moneys or U.S. Government
Obligations.
At the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to
Securities of any series on the 91st day after the applicable conditions set
forth below have been satisfied ("Defeasance") or (b) the Company shall cease
to be under any obligation to comply with any term, provision or condition set
forth in Section 10.4, Section 10.5, Section 10.6, Section 10.7 and Section
10.8 with respect to Securities of any series (and, if so specified pursuant to
Section 3.1, any other restrictive covenant added for the benefit of such
series) ("Covenant Defeasance") at any time after the applicable conditions set
forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series (i) money in an amount, or (ii)
U.S. Government Obligations (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, money in an amount, or (iii) a combination of (i) and (ii),
sufficient in the opinion (with respect to (ii) and (iii)) 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 (including any mandatory
sinking fund payments) of, and interest on, the Outstanding Securities
of such series on the respective Stated Maturities thereof.
(2) if the Securities of such series are then listed on the
New York Stock Exchange or any other securities exchange, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Company's exercise of its option under this Section would not
cause such Securities to be delisted;
(3) no Event of Default or event (including such deposit)
which, with notice or lapse of time, or both, would become an Event of
Default with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit or, with regard
to any such event specified in Sections 5.1(5) and (6), at any time on
or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day);
(4) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that Holders of the Securities 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
and will be subject to Federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
option
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had not been exercised, and, in the case of the Securities of such
series being Discharged, accompanied by a ruling to that effect received
from or published by the Internal Revenue Service.
(5) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning
of such Act).
(6) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a Default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust shall
be registered under such Act or exempt from registration thereunder.
(8) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
"Discharged" means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by, and obligations under,
the Securities of such series and to have satisfied all the obligations under
this Indenture relating to the Securities of such series (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities of such series to receive
payment of the principal of and the interest on such Securities when such
payments are due, (B) the Company's obligations with respect to the Securities
of such series under Sections 3.5, 3.6, 10.2 and 13.3, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder, and (D) this Article.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America or 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 payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which in either case
under clauses (i) or (ii) are not callable or redeemable at the option of the
issuer thereof, and shall 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 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
65
<PAGE> 75
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 13.3. Deposited Moneys and U.S. Government Obligations to Be Held in
Trust.
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 13.2 in respect of Securities of a series shall be held in
trust and applied by it, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon for principal (premium, if any) and interest, if any, but such money
need not be segregated from other funds except to the extent required by law.
SECTION 13.4 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 13.2 shall be revived and reinstated as though no
deposit had occurred pursuant to this Article with respect to such Securities,
until such time as the Trustee or Paying Agency is permitted to apply all money
held in trust pursuant to Section 13.3 with respect to such Securities in
accordance with this Article; provided, however, that if the Company makes any
payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust.
SECTION 13.5 Repayment to Company.
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any money or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of
(premium, if any) and interest on the Securities of any series for which money
or U.S. Government Obligations have been deposited pursuant to Section 13.2.
The provisions of the last paragraph of Section 10.3 shall apply to any
money held by the Trustee or any Paying Agent under this Article that remains
unclaimed for two years after the Maturity of any series of Securities for
which money or U.S. Government obligations have been deposited pursuant to
Section 13.2.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
66
<PAGE> 76
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.
A. H. BELO CORPORATION
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
, Trustee
----------------------------
By:
---------------------------------
Name:
--------------------------------
Title:
-------------------------------
67
<PAGE> 1
EXHIBIT 4.3
A. H. BELO CORPORATION
AND
--------------------------
AS WARRANT AGENT
WARRANT AGREEMENT
DATED AS OF _____________
<PAGE> 2
TABLE OF CONTENTS*
<TABLE>
<S> <C>
ARTICLE I. ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Execution and Delivery of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.03. Issuance of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II. WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.02. Duration of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.03. Exercise of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Debt Securityholders Conferred by Warrants or Warrant Certificates . . . . 4
SECTION 3.02. Lost, Stolen, Destroyed or Mutilated Warrant Certificates . . . . . . . . . . . . . . . . . . . 4
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4.02. Treatment of Holders of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4.03. Cancellation of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE V. CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5.02. Conditions of Warrant Agent's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5.03. Resignation and Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 5.04. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE VI. MISCELLANEOUS
SECTION 6.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.02. Notices and Demands to the Company and Warrant Agent . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.03. Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.04. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.05. Delivery of Prospectus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.06. Obtaining of Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 6.07. Persons Having Rights under Warrant Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 6.08. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 6.09. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 6.10. Inspection of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
- ------------------------
*The Table of Contents is not a part of the Warrant Agreement.
i
<PAGE> 3
WARRANT AGREEMENT
THIS WARRANT AGREEMENT is dated as of __________________, between A.
H. Belo Corporation, a corporation duly organized and existing under the laws of
the State of Delaware (the "Company") and ____________________, ___________, as
Warrant Agent (the "Warrant Agent").
WHEREAS, the Company has entered into an Indenture dated as of
______________ ("Indenture"), with _________________________, as Trustee
("Trustee"), providing for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Debt Securities"), to be
issued in one or more series as provided in the Indenture; and
WHEREAS, the Company proposes to sell [title of Debt Securities being
offered] ("Offered Debt Securities") with warrant certificates evidencing one
or more warrants ("Warrants" or, individually a "Warrant") representing the
right to purchase [title of Debt Securities purchasable through exercise of
Warrants] (the "Warrant Debt Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Warrant Certificates and the terms
and conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF
WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. Warrants shall be [initially]
issued in connection with the issuance of the Offered Debt Securities [but
shall be separately transferable on and after ________________________, 19___
("Detachable Date")] [and shall not be separately transferable]. Warrant
Certificates shall be [initially issued] in units with the Offered Debt
Securities and each Warrant Certificate included in such a unit shall evidence
________ Warrants for each $_____________ principal amount of Offered Debt
Securities included in such unit.
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in [bearer] [registered] form
substantially in the form set forth in Exhibit A hereto, shall be dated
__________ _______ and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule
<PAGE> 4
or regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Warrant Certificates may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the Company by
its Chairman of the Board, a Vice Chairman of the Board, President or any Vice
President and its Secretary or any of its Assistant Secretaries. Such
signatures may be manual or facsimile signatures of the present or any future
such authorized officers and may be imprinted or otherwise reproduced on the
Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of an authorized representative of the
Warrant Agent. Such signature upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates,
nevertheless, may be countersigned and delivered as though the person who
signed such Warrant Certificates has not ceased to be such officer of the
Company; and any Warrant Certificate may be signed on behalf of the Company by
such persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although at the date
of the execution of this Agreement any such person was not such officer.
[If bearer Warrants: The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean [If Debt Securities with Warrants which
are not immediately detachable: prior to the Detachable Date, the registered
owner of the Offered Debt Security to which such Warrant Certificate was
initially attached, and after such Detachable Date] the bearer of such Warrant
Certificate.]
[If registered Warrants: The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by or
on behalf of the Warrant Agent for that purpose [If Debt Securities with
Warrants which are not immediately detachable: or upon the register of the
Offered Debt Securities prior to the Detachable Date. The Company will, or will
cause the registrar of the Offered Debt Securities to, make available at all
times to the Warrant Agent such information as to holders of the Offered Debt
Securities with Warrants as may be necessary to keep the records maintained by
or on behalf of the Warrant Agent up to date.]]
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
$__________ aggregate principal amount of Warrant Debt Securities (except as
provided in Sections 2.03(c), 3.02 and 4.01) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant Agreement or
from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
$_______________ aggregate principal amount of Warrant Debt Securities and
shall deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate
is issued
2
<PAGE> 5
in exchange or substitution for one or more previously countersigned Warrant
Certificates [If registered Warrants: or in connection with their transfer],
as hereinafter provided.
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price*. (On ______________, 19___, the
exercise price of each Warrant is $_________ ___. During the period from
___________________, 19___, through and including ____________________,
19____, the exercise price of each Warrant will be $______________ plus
(accrued amortization of the original issue discount) (accrued interest) from
_________________, 19___. On ____________________, 19___, the exercise price
of each Warrant will be $____________. During the period from
__________________, 19___ through and including ____________________, 19__ ,
the exercise price of each Warrant will be $________________ plus (accrued
amortization of the original issue discount) (accrued interest) from
________________, 19___ (In each case, the original issue discount will be
amortized at a ___% annual rate, computed on a (semiannual) (annual) basis
using a 360-day year consisting of twelve 30-day months). Such purchase price
of Warrant Debt Securities is referred to in this Agreement as "the Warrant
Price." [The original issue discount for $1,000 principal amount of Warrant
Debt Securities is $_______________]
SECTION 2.02. Duration of Warrants. Each Warrant evidenced by a
Warrant Certificate may be exercised in whole at any time, as specified herein,
on or after [the date thereof] [___________________, 19___] and at or before
the close of business on _____________________, ______ ("Expiration Date").
Each Warrant not exercised at or before the close of business on the Expiration
Date shall become void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant and under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. (a) During the period specified
in Section 2.02, any whole number of Warrants, if the Warrant Certificate
evidencing the same shall have been countersigned by the Warrant Agent, may be
exercised by providing certain information set forth on the reverse side of the
Warrant Certificate and by paying in full, in lawful money of the United States
of America, [in cash or by certified check or official bank check or by bank
wire transfer] [by bank wire transfer], in each case in [immediately available]
funds, the Warrant Price for each Warrant exercised, to (_________________) at
(______________________________________) (or __________________), provided that
such exercise is subject to receipt within five business days of such (payment)
(wire transfer) by __________________________________ of the Warrant Certificate
with the form of election to purchase Warrant Debt Securities set forth on the
reverse side of the Warrant Certificate properly completed and duly executed.
The date on which payment in full of the Warrant Price is received by
_____________________________ shall, subject to receipt of the Warrant
Certificate as aforesaid, be deemed to be the date on which the Warrant is
exercised.
- --------------------
*Complete and modify the provisions of this Section as appropriate to
reflect the exact terms of the Offered Warrants and the Warrant Debt
Securities.
3
<PAGE> 6
(b) _________________________________ shall, from time to time, as
promptly as practicable, advise the Trustee or any Authenticating Agent under
the Indenture of (i) the number of Warrants exercised in accordance with the
terms and conditions of this Agreement and the Warrant Certificates, (ii) the
instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Debt Securities to which such
holder is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Trustee or any Authenticating Agent
shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant or
Warrants, the Company shall issue, pursuant to the Indenture, in authorized
denominations to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant or Warrants, the Warrant Debt Security or Warrant Debt
Securities to which such holder is entitled, in fully registered form,
registered in such name or names as may be directed by such holder; and if
fewer than all of the Warrants evidenced by such Warrant Certificate were
exercised, the Company shall execute, and the Warrant Agent shall countersign
and deliver, a new Warrant Certificate evidencing the number of Warrants
remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any
transfer involved in the issue of the Warrant Debt Securities; and in the event
that any such transfer is involved, the Company shall not be required to issue
or deliver any Warrant Debt Securities until such tax or other charge shall
have been paid or it has been established to the Company's satisfaction that no
such tax or other charge is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Debt Securityholders Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
the Warrant Debt Securities, including, without limitation, the right to
receive payment of the principal of (and premium, if any) or interest, if any,
on the Warrant Debt Securities or to enforce any of the covenants in the
Indenture.
SECTION 3.02. Lost, Stolen, Destroyed or Mutilated Warrant
Certificates. Upon receipt by the Company and the Warrant Agent of evidence
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of such security or indemnity as may
be required by them to save each of them harmless and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and upon its request the Warrant Agent shall countersign and deliver,
in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant
Certificate, a new Warrant Certificate of the same tenor and evidencing a like
number of Warrants. Upon the issuance of any new Warrant Certificate under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that
4
<PAGE> 7
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
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 of lost, stolen, destroyed or mutilated Warrant Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, the Trustee, any
Authenticating Agent, the holder of any Warrant Debt Securities or the holder
of any other Warrant Certificate, may, on his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company suitable to enforce, his right to exercise the Warrant or
Warrants evidenced by his Warrant Certificate in the manner provided in his
Warrant Certificate and in this Agreement.
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates. [If
Offered Debt Securities with Warrants which are immediately detachable: Upon]
[If Offered Debt Securities with Warrants which are not immediately detachable:
Prior to the Detachable Date, a Warrant Certificate may be exchanged or
transferred only together with the Offered Debt Security to which the Warrant
Certificate was initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Debt Security. On or
prior to the Detachable Date, each transfer of the Offered Debt Security shall
operate also to transfer the related Warrant Certificates. After the
Detachable Date upon] surrender at ___________________________________ [or
_____________________________], Warrant Certificates may be exchanged for other
Warrant Certificates in denominations evidencing Warrants, each Warrant
entitling the holder thereof to purchase $_______________ principal amount of
Warrant Debt Securities at the Warrant Price [If registered Warrants: or may
be transferred in whole or in part] [If bearer or registered Warrants: ;
provided that such other Warrant Certificates evidence the same aggregate
number of Warrants as the Warrant Certificates so surrendered.] [If registered
Warrants: The Warrant Agent shall keep or cause to be kept books in which,
subject to such reasonable regulations as it may prescribe, there shall be
registered Warrant Certificates in accordance with Section 1.02 and transfers
of outstanding Warrant Certificates, upon surrender of the Warrant Certificates
to the Warrant Agent or ____________________________________ for transfer,
properly endorsed or accompanied by appropriate instruments of transfer and
written instructions for transfer, all in form satisfactory to the Company and
the Warrant Agent or _____________________________, as the case may be.] No
service charge shall be made for any exchange [or transfer] of Warrant
Certificates, but the Company may require payment of a sum sufficient to cover
any stamp or other tax or governmental charge that may be imposed in connection
with any such exchange [or transfer]. Whenever any Warrant Certificates are so
surrendered for exchange [or transfer] the Warrant Agent shall countersign and
deliver or cause to be delivered to the person or persons entitled
5
<PAGE> 8
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company. No exchange [or transfer] shall be effected which
will result in the issuance of a Warrant Certificate evidencing a fraction of a
Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant
Certificates issued upon any exchange [or transfer] of Warrant Certificates
shall be the valid obligations of the Company, evidencing the same obligations,
and entitled to the same benefits under this Agreement, as the Warrant
Certificates surrendered for such exchange [or transfer].
SECTION 4.02. Treatment of Holders of Warrant Certificates. [If
Offered Debt Securities with bearer Warrants which are not immediately
detachable: Subject to Section 4.01, each] [If Offered Debt Securities with
bearer Warrants which are immediately detachable: Each] Warrant Certificate
shall be transferable by delivery and shall be deemed negotiable and the bearer
of each Warrant Certificate may be treated by the Company, the Warrant Agent,
any agent of the Warrant Agent and all other persons dealing with such bearer
as the absolute owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice
to the contrary notwithstanding.] [If registered Warrants: Every holder of a
Warrant Certificate, by accepting the same, consents and agrees with the
Company, the Warrant Agent and any agent of the Warrant Agent that until the
Warrant Certificate is transferred on the books maintained for registration of
Warrants in accordance with Section 4.02 [or the register of the Offered Debt
Securities prior to the Detachable Date], the Company, the Warrant Agent and
any agent of the Warrant Agent may treat the registered holder as the absolute
owner thereof for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced thereby, any notice to the contrary
notwithstanding.]
SECTION 4.03. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange [,transfer] or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company or any agent of the
Warrant Agent, be delivered to the Warrant Agent, and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly canceled by
the Warrant Agent and shall not be reissued and, except as expressly permitted
by this Agreement, no Warrant Certificate shall be issued hereunder in exchange
or in lieu thereof. The Warrant Agent shall deliver to the Company from time
to time or otherwise dispose of canceled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints
______________________ as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth; and _______________________________hereby accepts
such appointment. The Warrant Agent shall have the powers and authority
granted to and conferred upon it in the Warrant Certificates and hereby and
such further powers and authority to act on behalf of the Company as the
Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
6
<PAGE> 9
The Warrant Agent, from time to time upon receipt of a request of the
Company, shall promptly appoint one or more agents with power to act on its
behalf and subject to its direction in the countersigning and delivery of
Warrant Certificates and in connection with registrations of transfers and
exchanges of Warrant Certificates as fully to all intents and purposes as
though each such agent had been expressly authorized to countersign and deliver
such Warrant Certificates, and in connection with the exercise of Warrants.
For all purposes of this Agreement, the countersignature and delivery of
Warrant Certificates by any such agent pursuant to this Section shall be deemed
to be the countersignature and delivery of such Warrant Certificates "by the
Warrant Agent."
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following, to all of which the Company agrees and to all
of which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent (including any agent appointed pursuant to Section 5.01)
the compensation to be agreed upon with the Company for all services rendered
by the Warrant Agent and to reimburse the Warrant Agent for reasonable
out-of-pocket expenses (including counsel fees) incurred by the Warrant Agent
in connection with the services rendered hereunder by the Warrant Agent. The
Company also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Warrant Agent, arising out of or in connection with
its acting as Warrant Agent hereunder, as well as the costs and expenses of
defending against any claim of liability in the premises.
(b) Agent for the Company. In acting under this Warrant Agreement
and in connection with the Warrant Certificates, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the owners or holders of the
Warrant Certificates.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it, and the advice of such 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 accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificates, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the proper
parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
any Warrant Certificates, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary, trustee or
agent for, any committee or body of holders of Warrant Debt Securities or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder.
7
<PAGE> 10
(f) No Liability for Interest. The Warrant Agent shall not have any
liability for interest on any monies at any time received by it pursuant to any
of the provisions of this Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall not incur
any liability with respect to the validity of this Agreement or any of the
Warrant Certificates.
(h) No Responsibility for Representations. The Warrant Agent shall
not be responsible for any of the recitals or representations herein or in the
Warrant Certificates contained (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform such duties as are herein and in the Warrant Certificates specifically
set forth and no implied duties or obligations shall be read into this
Agreement or the Warrant Certificates against the Warrant Agent. The Warrant
Agent shall not be under any obligation to take any action hereunder which may
tend to involve it in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it. The Warrant
Agent shall not be accountable or under any duty or responsibility for the use
by the Company of any of the Warrant Certificates authenticated by the Warrant
Agent and delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained herein
or in the Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.02 hereof, to make any demand
upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective; provided that
such date shall not be less than three months after the date on which such
notice is given unless the Company agrees to accept less notice. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the date when it shall become effective. Such resignation or
removal shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a corporation organized
and doing business under the laws of the United States of America or of any
State and authorized under such laws to act as warrant agent) and the
acceptance of such appointment by such successor Warrant Agent. The obligation
of the Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
8
<PAGE> 11
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall file a petition seeking relief under Title 11 of the
United States Code, as now constituted or hereafter amended, or under any other
applicable Federal or State bankruptcy law or similar law or make an assignment
for the benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the provisions of Title 11 of the United States Code, as now constituted
or hereafter amended, or under any other applicable Federal or State bankruptcy
or similar law, or if any public officer shall have taken charge or control of
the Warrant Agent or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, a successor Warrant Agent,
qualified as aforesaid, shall be appointed by the Company by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment as
aforesaid of a successor Warrant Agent and acceptance by the successor Warrant
Agent of such appointment, the Warrant Agent so superseded shall cease to be
Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
SECTION 5.04. Payment of Taxes. The Company will pay all stamp and
other duties, if any, to which, under the laws of the United States of America
or any State, this Agreement or the original issuance of the Warrant
Certificates may be subject.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement
9
<PAGE> 12
as the Company and the Warrant Agent may deem necessary or desirable; provided
that such action shall not adversely affect the interests of the holders of the
Warrant Certificates.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
SECTION 6.03. Addresses. Any communications from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
_______________________________________ and any communications from the Warrant
Agent to the Company with respect to this Agreement shall be addressed to A. H.
Belo Corporation, 400 South Record Street, Dallas, Texas 75202, Attention:
Treasurer (or such other address as shall be specified in writing by the
Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by the laws of
the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to
the Warrant Agent or any agent appointed by it in accordance with Section 5.01
sufficient copies of a prospectus and prospectus supplement, as the case may
be, relating to the Warrant Debt Securities deliverable upon exercise of
Warrants for delivery thereof to the holders of the Warrant Certificate
evidencing such Warrants, prior to or concurrently with the delivery of the
Warrant Debt Securities issued upon such exercise.
SECTION 6.06. Obtaining of Governmental Approvals. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation the maintenance of the effectiveness
of a registration statement in respect of the Warrants and Warrant Debt
Securities under the Securities Act of 1933), which may be or become requisite
in connection with the issuance, sale, transfer and delivery of the Warrant
Certificates, the exercise of the Warrants and the issuance, sale, transfer and
delivery of the Warrant Debt Securities issued upon exercise of the Warrants.
SECTION 6.07. Persons Having Rights under Warrant Agreement. Nothing
in this Agreement expressed or implied and nothing that may be inferred from
any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any individual or entity other than the Company, the Warrant
Agent and its agents and the holders of the Warrant Certificates any right,
remedy or claim under or by reason of this Agreement or of any covenant,
condition, stipulation, promise or agreement hereof; and all covenants,
conditions, stipulations, promises and agreements in this Agreement contained
shall be for the sole and exclusive benefit of the Company and the Warrant
Agent and its agents and their successors and of the holders of the Warrant
Certificates.
10
<PAGE> 13
SECTION 6.08. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal office of the
Warrant Agent at ________________________ and at the main office of the
Company, 400 South Record Street, Dallas, Texas 75202, for inspection by the
holder of any Warrant Certificate. The Warrant Agent or the Company may require
such holder to submit such holder's Warrant Certificate for inspection by it.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by one of its duly authorized officers and the same to be attested by its
Secretary or one of its Assistant Secretaries; and
__________________________ has caused this Agreement to be signed by one of
its duly authorized officers, and the same to be attested by ________________
all as of the day and year first above written.
A. H. BELO CORPORATION
BY
--------------------------------
Authorized Officer
Attest:
- ----------------------------
(Assistant) Secretary
BY
--------------------------------
Attest:
- ----------------------------
11
<PAGE> 14
EXHIBIT A
(FORM OF WARRANT CERTIFICATE)
A-1
<PAGE> 1
EXHIBIT 4.4
(FORM OF WARRANT CERTIFICATE)
(FRONT FACE OF WARRANT CERTIFICATE)
(Form of Legend if Debt Securities with Prior to ______________
Warrants which are not immediately detachable: this Warrant cannot be
transferred or exchanged
unless attached to a
(Title of Debt Securities)
(Form of Legend if Warrants are not Prior to ______________
immediately exercisable: this Warrant cannot be
exercisable
EXERCISABLE ONLY IF COUNTERSIGNED BY
OR ON BEHALF OF THE WARRANT AGENT
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
(Title of Warrant Debt Securities)
as described herein.
A. H. BELO CORPORATION
PURCHASE WARRANT
FOR (TITLE OF WARRANT DEBT SECURITIES)
VOID AFTER THE CLOSE OF BUSINESS ON ________________, 19___
(No.) _______ Warrants
This certifies that (the bearer is the) (_______________________ or
registered assigns is the registered) owner of the above indicated number of
Warrants, each Warrant entitling such (bearer) (owner) to purchase, at any time
(after the close of business on ___________________, 19___ and) on or before
the close of business on ___________________ ________, 19___,
$_____________________principal amount of (title of Warrant Debt Securities)
("Warrant Debt Securities"), of A. H. Belo Corporation ("Company"), issued and
to be issued under the Indenture (as hereinafter defined), on the following
basis:* (On _______________________, 19___, the exercise price of each Warrant
is $__________ _____; during the period from ____________________, 19___,
through and including _________________, 19___, the exercise price of each
Warrant will be $________________ plus (accrued amortization of the original
issue discount) (accrued interest) from ______________, 19__; on
_________________, 19___ the exercise price of each Warrant will be
$____________ _; during the period from _______________, 19__
- ----------------------
*Complete and modify the following provisions as appropriate to reflect
the exact terms of the Offered Warrants and the Warrant Debt Securities.
<PAGE> 2
, through and including _________________, 19___, the exercise price of each
Warrant will be $______________ plus (accrued amortization of the original
issue discount) (accrued interest) from ________________, 19___; (in each case,
the original issue discount will be amortized at a ___% annual rate computed on
a (semiannual) (annual) basis, using a 360-day year consisting of twelve 30-day
months) ("Warrant Price"). (The original issue discount for each
$______________ principal amount of Warrant Debt Securities is $_____________).
The (bearer) (registered owner) may exercise the Warrants evidenced hereby by
paying in full, in lawful money of the United States of America, (in cash or by
certified check or official bank check or by bank wire transfer) (by bank wire
transfer), in each case in (immediately available) funds, the Warrant Price for
each Warrant exercised to ____________ (or ___________________________) and by
surrendering this Warrant Certificate within five business days of such
payment, with the purchase form on the back hereof properly completed and duly
executed, at the office of _______________ (or _____________________,)
currently at the address specified on the reverse hereof and upon compliance
with and subject to the conditions set forth herein and in the Warrant
Agreement (as hereinafter defined).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Debt Securities in registered form in
denominations of $________________ and any integral multiples thereof. Upon
any exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the (bearer) (registered owner) hereof a
new Warrant Certificate evidencing the number of Warrants remaining
unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _____________ __, 19___ ("Warrant Agreement"),
between the Company and _____________________ ("Warrant Agent") and is subject
to the terms and provisions contained in the Warrant Agreement, to all of which
terms and provisions the (bearer) (registered owner) of this Warrant
Certificate consents by acceptance hereof. Copies of the Warrant Agreement are
on file at the principal office of the Warrant Agent at _______________________
and the main office of the Company, 400 South Record Street, Dallas, Texas
75202.
The Warrant Debt Securities to be issued and delivered upon the
exercise of the Warrants evidenced by this Warrant Certificate will be issued
under and in accordance with an Indenture dated as of ________________
("Indenture"), between the Company and ____________________________, as
Trustee, and will be subject to the terms and provisions contained in the
Indenture. Copies of the Indenture, including the form of the Warrant Debt
Securities, are on file at the corporate trust office of said Trustee at
___________________________ (and at _____________________________________ ).
(If Offered Debt Securities with bearer Warrants which are not
immediately detachable: Prior to ______________ _______, 19___ this Warrant
Certificate may be exchanged or transferred only together with the (title of
Offered Debt Securities) ("Offered Debt Securities") to which this Warrant
Certificate was initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Debt Security. After
such date, this (If Offered Debt Securities with bearer Warrants which are
immediately detachable: This) Warrant Certificate, and all rights hereunder
may be transferred by delivery and the Company and the Warrant Agent and its
agents may treat the bearer hereof as the owner for all purposes.)
(If Offered Debt Securities with registered Warrants which are not
immediately detachable: Prior to ___________ ________________, 19___ this
Warrant Certificate may be exchanged or
<PAGE> 3
transferred only together with the (title of Offered Debt Securities) ("Offered
Debt Securities") to which this Warrant Certificate was initially attached, and
only for the purpose of effecting or in conjunction with an exchange or
transfer of such Offered Debt Security. After such date, this (If Offered Debt
Securities with registered Warrants which are immediately detachable: This)
Warrant Certificate may be transferred when surrendered at the office of
_________________ __________________ (or _____________________________________)
by the registered owner or his assigns, in person or by an attorney duly
authorized in writing, in the manner and subject to the limitations provided in
the Warrant Agreement.)
(If Offered Debt Securities with Warrants which are not immediately
detachable: Except as provided in the immediately proceeding paragraph, after)
(If Offered Debt Securities with Warrants which are immediately detachable:
After) countersignature by or on behalf of the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the office of _________________________________________(or
_________________ ________________) for Warrant Certificates representing the
same aggregate number of Warrants.
This Warrant Certificate shall not entitle the (bearer) (registered
owner) hereof to any of the rights of a holder of the Warrant Debt Securities,
including, without limitation, the right to receive payment of the principal of
(and premium, if any) or interest, if any, on the Warrant Debt Securities or to
enforce any of the covenants of the Indenture.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by or behalf of the Warrant Agent.
Dated as of _____________________, 19___
A. H. BELO CORPORATION
By
--------------------------------
Attest:
By
--------------------------------
COUNTERSIGNED BY OR ON BEHALF OF:
,as
------------------------------
Warrant Agent
By
--------------------------------
Authorized Signature
<PAGE> 4
(BACK FACE OF WARRANT CERTIFICATE)
(INSTRUCTIONS FOR EXERCISE OF WARRANT)
To exercise the Warrants represented hereby, the Warrantholder should
pay (in cash or by certified check or official bank check or by bank wire
transfer) (by bank wire transfer), in each case in (immediately available)
funds, the Warrant Price in full for Warrants exercised to
(______________________________________) (or ________________________
______________), which payment should specify the name of the Warrantholder and
the number of Warrants exercised by such Warrantholder. In addition, the
Warrantholder should complete the information required below and present (in
person or mail) (by registered mail) this Warrant Certificate to
___________________________ (or ______________________________) at the address
set forth below. This Warrant Certificate, completed and duly executed, must
be received by ____________________________________ (or ______________________)
within five business days of the payment.
(FORM OF ELECTION TO PURCHASE)
(TO BE EXECUTED UPON EXERCISE OF WARRANT.)
The undersigned hereby irrevocably elects to exercise ______ Warrants,
represented by this Warrant Certificate, to purchase $_____________ principal
amount of the (title of Warrant Debt Securities) ("Warrant Debt Securities") of
A. H. Belo Corporation and represents that he has tendered payment for such
Warrant Debt Securities (in cash or by certified check or official bank check
or by bank wire transfer) (by bank wire transfer), in each case in (immediately
available) funds to the order of A. H. Belo Corporation, c/o _____________ (or
__________________________), in the amount of $____________ in accordance with
the terms hereof. The undersigned requests that said principal amount of
Warrant Debt Securities be in fully registered form, in such authorized
denominations, registered in such names and delivered, all as specified in
accordance with the instructions set forth below.
If said principal amount of Warrant Debt Securities is less than all
of the Warrant Debt Securities purchasable hereunder, the undersigned requests
that a new Warrant Certificate representing the remaining balance of the
Warrants evidenced hereby be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
Dated: Name:
- ------------------ --------------------------------
(Please Print)
(Insert Social Security or Other
Identifying Number of Holder)
- -----------------------------------
Address
- -----------------------------------
Signature
<PAGE> 5
This Warrant may be exercised at the following addresses:
(Instructions as to form and delivery of Warrant Debt Securities
and/or Warrant Certificates)
<PAGE> 1
EXHIBIT 5
[LOCKE PURNELL RAIN HARRELL LETTERHEAD]
April 21, 1997
A. H. Belo Corporation
400 South Record Street
Dallas, Texas 75202
Re: Registration Statement on Form S-3
$1,500,000,000 Aggregate Initial Public
Offering Price of Debt Securities and
Warrants to Purchase Debt Securities
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3 (the "Registration
Statement") being filed by A. H. Belo Corporation, a Delaware corporation (the
"Company"), with the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
shelf registration of $1,500,000,000 aggregate initial public offering price of
the Company's debt securities (the "Debt Securities") and warrants to purchase
Debt Securities (the "Warrants"). The Debt Securities are to be issued under
an Indenture (the "Indenture") between the Company and a trustee to be
appointed by the Company (the "Trustee"), the form of which is being filed as
an exhibit to the Registration Statement. The Warrants are to be issued under
a Warrant Agreement, the form of which is being filed as an exhibit to the
Registration Statement (the "Warrant Agreement").
We are familiar with the proceedings to date with respect to the
proposed issuance and sale of the Debt Securities and the Warrants and have
examined such records and documents, and satisfied ourselves as to such matters
of fact and questions of law, as we have considered relevant and necessary as a
basis for this opinion.
Based on the foregoing, we are of the opinion that:
1. Each series of Debt Securities will be legally issued
and binding obligations of the Company (except to the extent
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws affecting the enforcement of creditors' rights generally
<PAGE> 2
A. H. Belo Corporation
April 21, 1997
Page 2
and by the effect of general principles of equity, regardless of
whether enforceability is considered in a proceeding in equity or at
law) when: (i) the Registration Statement, as finally amended
(including any necessary post-effective amendments), shall have become
effective under the Securities Act and the Indenture (including any
necessary supplemental indenture) shall have been qualified under the
Trust Indenture Act of 1939, as amended, and duly executed and
delivered by the Company and the Trustee; (ii) a prospectus supplement
(including any pricing supplement) with respect to such series of Debt
Securities shall have been filed (or mailed for filing) with the SEC
pursuant to Rule 424 under the Securities Act; (iii) the Company's
Board of Directors or a duly authorized committee thereof shall have
duly adopted final resolutions authorizing the issuance and sale of
such series of Debt Securities as contemplated by the Registration
Statement and the Indenture; and (iv) such series of Debt Securities
shall have been duly executed and authenticated, as provided in the
Indenture and such resolutions, and shall have been duly delivered to
the purchasers thereof against payment of the agreed consideration
therefor.
2. Each series of Warrants will be legally issued and
binding obligations of the Company (except to the extent
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws affecting the enforcement of creditors' rights generally
and by the effect of general principles of equity, regardless of
whether enforceability is considered in a proceeding in equity or at
law) when: (i) the Registration Statement, as finally amended
(including any necessary post-effective amendments), shall have become
effective under the Securities Act and the Warrant Agreement
(including any necessary supplemental agreement) shall have been duly
executed and delivered by the Company and the Warrant Agent (as
defined in such Warrant Agreement); (ii) a prospectus supplement
(including any pricing supplement) with respect to such series of
Warrants shall have been filed (or mailed for filing) with the SEC
pursuant to Rule 424 under the Securities Act; (iii) the Company's
Board of Directors or a duly authorized committee thereof shall have
duly adopted final resolutions authorizing the issuance and sale of
such series of Warrants as contemplated by the Registration Statement
and such Warrant Agreement; and (iv) such series of Warrants shall
have been duly executed and authenticated, as provided in such Warrant
Agreement and such resolutions, and shall have been duly delivered to
the purchasers thereof against payment of the agreed consideration
therefor.
This opinion is limited to the General Corporation Law of the State of
Delaware, the laws of the State of Texas and the federal laws of the United
States of America. For purposes of this opinion, we have assumed that (i) New
York law is the same as Texas law, (ii) there will be no changes in the laws
currently applicable to the Company and (iii) such laws will be the only laws
applicable to the Company.
<PAGE> 3
A. H. Belo Corporation
April 21, 1997
Page 3
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm included under the
caption "Legal Matters" in the Prospectus forming a part of the Registration
Statement. In giving such consent, we do not thereby admit that we are within
the category of persons whose consent is required by Section 7 of the
Securities Act or the related rules promulgated by the SEC.
Very truly yours,
LOCKE PURNELL RAIN HARRELL
(A Professional Corporation)
By: /s/ Guy Kerr
------------------------------
<PAGE> 1
EXHIBIT 12
A. H. BELO CORPORATION
Computation of Ratio of Earnings to Fixed Charges
(Dollars in thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------------------------------------------------
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Earnings:
Earnings before income taxes and
the cumulative effect of
accounting charges $61,573 $75,578 $107,897 $111,014 $144,040
Add: Total fixed charges 26,597 18,792 17,294 32,089 29,009
Less: Interest capitalized 395 1,961 138 957 255
------- ------- -------- -------- --------
Adjusted earnings $87,775 $92,409 $125,053 $142,146 $172,794
======= ======= ======= ======== ========
Fixed Charges:
Interest $24,554 $16,976 $16,250 $ 30,944 $ 27,898
Portion of rental expense
representative of the interest
factor (1) 2,043 1,816 1,044 1,145 1,111
------- ------- -------- -------- --------
Total fixed charges $26,597 $18,792 $17,294 $ 32,089 $ 29,009
======= ======= ======= ======== ========
Ratio of Earnings to Fixed Charges 3.30 x 4.92 x 7.23 x 4.43 x 5.96 x
======= ======= ======= ======== ========
</TABLE>
- ----------------------
(1) For purposes of calculating fixed charges, an interest factor of one
third was applied to total rent expense for the period indicated.
<PAGE> 1
EXHIBIT 23.1
Consent of Ernst & Young LLP
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3) and related Prospectus of A. H. Belo
Corporation for the registration of $1,500,000,000 of its Debt Securities and
Warrants to purchase Debt Securities and to the incorporation by reference
therein of our report dated January 27, 1997, except for Note 11, as to which
the date is February 28, 1997, with respect to the consolidated financial
statements of A. H. Belo Corporation included in its Annual Report (Form 10-K)
for the year ended December 31, 1996, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Dallas, Texas
April 18, 1997
