<PAGE>
As filed with the Securities and Exchange Commission on July 7, 1999
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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TRUE NORTH COMMUNICATIONS INC.
(Exact name of registrant as specified in its charter)
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Delaware 36-1088161
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
101 East Erie Street
Chicago, Illinois 60611-2897
(312) 425-6500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
David A. Bell Theodore J. Theophilos
Chief Executive Officer Executive Vice President of Corporate
True North Communications Inc. Development and Business Affairs
101 East Erie Street True North Communications Inc.
Chicago, Illinois 60611-2897 101 East Erie Street
(312) 425-6500 Chicago, Illinois 60611-2897
(312) 425-6500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Andrew H. Shaw, Esq. Suzanne Sutkowski Bettman, Esq.
Sidley & Austin True North Communications Inc.
One First National Plaza 101 East Erie Street
Chicago, Illinois 60603 Chicago, Illinois 60611-2897
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Approximate date of commencement of proposed sale to public: From time to
time after the effective date of this 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 any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please 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, please 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. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
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<CAPTION>
Title of each class of Proposed maximum Proposed maximum
securities to be Amount to be offering price aggregate Amount of
registered registered per unit offering price registration fee
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<S> <C> <C> <C> <C>
Debt Securities,
Preferred Stock (par
value $1.00 per share)
and Depositary Shares
(1)(2)(3)............ (1)(2) (1)(2) $250,000,000(2)(4) $69,500(5)
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</TABLE>
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(1) This registration statement covers an indeterminate principal amount of
debt securities, an indeterminate number of shares of preferred stock and
an indeterminate number of depositary shares of the registrant as shall
have an aggregate initial public offering price not to exceed $250,000,000.
If any debt securities are issued at an original issue discount, then the
securities registered shall include additional debt securities as may be
necessary such that the aggregate initial public offering price of all
securities issued pursuant to this registration statement will not exceed
$250,000,000. Any securities registered hereunder may be sold separately or
as units with other securities registered hereunder. The proposed maximum
initial public offering price per unit will be determined, from time to
time, by the registrant in connection with the issuance by the registrant
of the securities registered hereunder.
(2) Not specified with respect to each class of securities to be registered
pursuant to General Instruction I.D. of Form S-3 under the Securities Act.
(3) If the registrant elects to offer to the public fractional interests in
shares of the preferred stock registered hereunder, depositary receipts
will be distributed to persons purchasing the fractional interests, and
preferred stock will be issued to the depositary under the deposit
agreement.
(4) Estimated solely for the purpose of calculating the registration fee.
(5) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act.
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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 or until this registration statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
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<PAGE>
PRELIMINARY, SUBJECT TO COMPLETION
DATED JULY 7, 1999
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the SEC
is effective. This prospectus is not an offer to sell these securities, and we
are not soliciting an offer to buy these securities in any state where the
offer or sale is not permitted.
PROSPECTUS
$250,000,000
True North Communications Inc.
Debt Securities, Preferred Stock and Depositary Shares
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True North Communications Inc. intends to offer at one or more times debt
securities and preferred stock, interests in which may be represented by
depositary shares. This prospectus describes the general terms of these
securities and the general manner in which we will offer the securities. The
specific terms of any securities we offer will be included in a supplement to
this prospectus. The prospectus supplement will also describe the manner in
which we will offer the securities.
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The Securities and Exchange Commission and state securities regulators have
not approved or disapproved these securities, or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal
offense.
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, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Cautionary Note Regarding Forward-Looking Statements....................... 3
About this Prospectus...................................................... 3
Where You Can Find More Information........................................ 3
The Company................................................................ 5
Use Of Proceeds............................................................ 5
Ratios Of Earnings To Fixed Charges........................................ 6
Description Of Debt Securities............................................. 6
Description Of Preferred Stock............................................. 17
Description Of Depositary Shares........................................... 18
Plan Of Distribution....................................................... 21
Legal Matters.............................................................. 22
Experts.................................................................... 22
</TABLE>
You should rely only on the information we provide or incorporate by
reference in this prospectus and the applicable prospectus supplement, and in
any pricing supplement. We have not authorized anyone to provide you with
different or additional information. We are offering to sell the securities
offered by this prospectus, and seeking offers to buy these securities, only in
jurisdictions where offers and sales are permitted. The information contained
in this prospectus is accurate only as of the date of this prospectus,
regardless of the time of delivery of this prospectus or any sales of the
securities. In this prospectus, "True North," "we," "us" and "our" refer to
True North Communications Inc., a Delaware corporation, excluding, unless the
context otherwise requires or as otherwise expressly stated, our subsidiaries.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference contain
"forward-looking" statements, within the meaning of Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934,
that are based on current expectations, estimates and projections. Statements
that are not historical facts, including statements about our beliefs and
expectations, are forward-looking statements. These statements contain
potential risks and uncertainties and, therefore, actual results may differ
materially. We undertake no obligation to update publicly any forward-looking
statements, whether as a result of new information, future events or otherwise.
Important factors that may affect these projections or expectations include,
but are not limited to:
(1) general economic and business conditions;
(2) changes in demand for our services;
(3) changes in competition;
(4) our ability to integrate acquisitions or complete future acquisitions;
(5) interest rate fluctuations;
(6) dependence upon and availability of qualified personnel; and
(7) changes in governmental regulation.
Investors should evaluate any statements in light of these important
factors.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC using a "shelf" registration process. Under this shelf process, we may,
from time to time, sell the debt securities and preferred stock, including
interests in preferred stock represented by depositary shares, described in
this prospectus in one or more offerings with a total offering price not to
exceed $250,000,000. This prospectus provides you with a general description of
the securities we propose to issue. Each time we sell securities, we will
provide you with a prospectus supplement and, if applicable, a pricing
supplement, that will contain specific information about the terms of that
offering. The prospectus supplement and any applicable pricing supplement may
also add, update or change information in this prospectus. Please carefully
read both this prospectus and any applicable prospectus supplement and pricing
supplement together with additional information described under the heading
"Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference room at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549 or at the SEC's regional offices located at
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-
2511 and at Seven World Trade Center, 13th Floor, New York, New York 10048.
Please call the SEC at 1-800-SEC-0330 for further information. In addition, the
SEC maintains a Website that contains reports, proxy statements and other
information that we electronically file. The address of the SEC's Website is
http://www.sec.gov. You can also inspect reports and other information we file
at the office of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005.
The SEC allows us to "incorporate by reference" information from other
documents that we file with them, which means that we can disclose important
information by referring to those documents. The information we incorporate by
reference is considered part of this prospectus, and information that we file
later
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with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act prior to the sale of all the securities covered by this
prospectus:
. Annual Report on Form 10-K for the fiscal year ended December 31, 1998;
. Amendment No. 1 to Annual Report on Form 10-K/A for the fiscal year
ended December 31, 1998;
. Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
. Current Reports on Form 8-K dated February 25, 1999, March 12, 1999,
April 13, 1999, April 16, 1999 and June 14, 1999;
. The description of our capital stock contained in our registration
statement on Form S-4 filed on November 26, 1997, Registration No. 333-
41189, and any amendment or report filed for the purposes of updating
such description; and
. The description of the Preferred Stock Purchase Rights contained in our
registration statement on Form 8-A filed on November 5, 1998, as amended
by our registration statement on Form 8-A/A filed on April 16, 1999, and
any amendment or report filed for the purpose of updating such
description.
This prospectus is part of a registration statement we filed with the SEC.
This prospectus omits some information contained in the registration statement
in accordance with SEC rules. For further information on us and our
consolidated subsidiaries and the securities we are offering, you may review
the information and exhibits in the registration statement. The registration
statement and exhibits are also available at the SEC's public reference room or
through its Website. Statements in this prospectus concerning any document we
filed as an exhibit to the registration statement or that we otherwise filed
with the SEC are not intended to be comprehensive and are qualified by
reference to those filings. You should review the complete document to evaluate
these statements.
You may request copies of these filings, without charge, by writing or
calling our corporate secretary at 101 East Erie Street, Chicago, Illinois
60611-2897, (312) 425-6500. In order to ensure delivery of documents, you
should make any requests not later than five business days prior to making an
investment decision.
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THE COMPANY
In January 1995, True North succeeded Foote, Cone & Belding Communications,
Inc. as the holding company for Foote, Cone & Belding, Inc.--one of America's
largest advertising agencies. In December 1997, through our acquisition of
Bozell, Jacobs, Kenyon & Eckhardt, Inc., we almost doubled our size by adding
Bozell Worldwide, Temerlin McClain and several specialized communications
businesses to our network.
We offer full-service advertising through two separate, independent global
agency networks: FCB Worldwide and Bozell Worldwide. We also operate two other
significant independent full-service agencies, Temerlin McClain, Inc. and
Tierney & Partners. In addition, we own several marketing services and
specialty advertising companies through the True North Diversified Services
Companies, and several interactive marketing companies through TN Technologies
Inc. FCB Worldwide and Bozell Worldwide, by themselves and through their
respective subsidiaries and affiliates, independently operate advertising
agency networks. Their primary business is to create marketing communications
for their clients' goods and services across the total spectrum of advertising
and promotion media. Each of the agency networks has its own clients and
competes with the other in many markets.
Our corporate headquarters are located at 101 East Erie Street, Chicago,
Illinois 60611-2897, and our telephone number is (312) 425-6500.
USE OF PROCEEDS
We currently intend to use the net proceeds from the sale of any securities
offered by this prospectus and the applicable prospectus supplement for:
(1) general corporate purposes, which may include the repayment of long-
term and short-term indebtedness;
(2) working capital;
(3) securities repurchase programs;
(4) investments in, or extensions of credit to, our subsidiaries;
(5) financing of possible acquisitions; and
(6) other purposes as may be stated in the applicable prospectus
supplement.
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RATIOS OF EARNINGS TO FIXED CHARGES
The following table shows the ratios of earnings to fixed charges for us and
our consolidated subsidiaries for the periods indicated. To date, we have not
issued preferred stock; therefore, the ratios of earnings to combined fixed
charges and preferred stock dividends are the same as the ratios of earnings to
fixed charges shown below.
<TABLE>
<CAPTION>
Three Months Three Months
Year Ended December 31, Ended Ended
-------------------------- March 31, March 31,
1994 1995 1996 1997 1998 1998 1999
---- ---- ---- ------ ---- ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges (1)....... 2.52 2.13 2.13 .08(2) 2.66 1.72 2.16
</TABLE>
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(1) On December 30, 1997, we acquired Bozell, Jacobs, Kenyon & Eckhardt, Inc.
through a merger with one of our wholly-owned subsidiaries. The merger was
accounted for as a "pooling of interests." As a result, we restated our
financial statements for each of our fiscal years ended December 31, 1994
through December 31, 1997. Our fiscal year ends on December 31; Bozell,
Jacobs, Kenyon & Eckhardt, Inc.'s fiscal year ended on March 31. Our
financial reporting period ending December 31 was adopted by the combined
entity. For purposes of calculating the ratio of earnings to fixed charges,
we conformed the fiscal years of the two companies only for the fiscal
years ended December 31, 1995 and thereafter.
In February 1999, we issued 1,201,000 shares of our common stock for all of
the outstanding capital stock of The Financial Relations Board, Inc., a
Chicago-based investor relations firm. This acquisition has been accounted
for as a pooling of interests and, accordingly, we restated our consolidated
financial statements for all periods prior to the acquisition.
(2) The ratio of earnings to fixed charges for the year ended December 31, 1997
before restructuring charges of $80,946,000 and other unusual or one-time
write-offs of $56,852,000 was 3.02x. The restructuring charges related
primarily to costs incurred resulting from the acquisition of Bozell,
Jacobs, Kenyon & Eckhardt, Inc. and other one-time write-offs occurring
during the year or at the time of the acquisition.
In calculating the ratio of earnings to fixed charges, earnings are the sum
of earnings before income taxes plus fixed charges. Fixed charges are the sum
of interest on indebtedness, amortization of debt discount and expense and that
portion of net rental expense deemed representative of the interest component.
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities under an indenture between us and the trustee
named in the applicable prospectus supplement. The form of indenture is an
exhibit to the registration statement we filed with the SEC, of which this
prospectus is a part. We have summarized below the material provisions of the
indenture and the debt securities, or indicated which material provisions will
be described in the applicable prospectus supplement. These descriptions are
only summaries, and you should refer to the indenture which describes
completely the terms and definitions summarized below and contains additional
information regarding the debt securities.
General
Unless otherwise specified in the applicable prospectus supplement, the debt
securities will constitute part of our senior unsecured obligations and will
rank equally with all of our other unsecured and unsubordinated indebtedness.
The indenture does not limit the aggregate principal amount of debt
securities issuable under it. We may issue debt securities at one or more times
in one or more series. Each series of debt securities may have different terms.
The terms of any series of debt securities will be described in, or determined
by action taken pursuant to, a resolution of our board of directors or in a
supplement to the indenture relating to that series.
The prospectus supplement, including any related pricing supplement,
relating to any series of debt securities that we may offer will state the
price or prices at which the debt securities will be offered, and will contain
the specific terms of that series. These terms may include the following:
(1) the title of the series of debt securities;
(2) any limit on the aggregate principal amount of the debt securities;
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(3) the date or dates on which principal and premium, if any, on the debt
securities will be payable;
(4) the rate or rates at which the debt securities will bear interest, if
any, or the method of calculating the rate or rates of interest, the
date or dates from which interest will accrue or the method by which
the date or dates will be determined, the dates on which interest will
be payable, and any regular record date for payment of interest;
(5) the place or places where the principal of, premium, if any, and
interest on the debt securities will be payable;
(6) the place or places where the debt securities may be exchanged or
transferred;
(7) the terms and conditions upon which we may redeem the debt securities,
in whole or in part, at our option;
(8) the terms and conditions upon which we may be obligated to redeem or
purchase the debt securities under any sinking fund or similar
provisions or upon the happening of a specified event or at the option
of a holder;
(9) the denominations in which the debt securities will be issuable, if
other than denominations of $1,000 and any integral multiple of $1,000
(10) if other than U.S. dollars, the currency or currencies, including the
currency unit or units, in which payments of principal of, premium, if
any, and interest on the debt securities will or may be payable, or in
which the debt securities shall be denominated, and any particular
related provisions;
(11) if we or a holder may elect that payments of principal of, premium, if
any, or interest on the debt securities be made in a currency or
currencies, including currency unit or units, other than that in which
the debt securities are denominated or designated to be payable, the
currency or currencies in which such payments are to be made,
including the terms and conditions applicable to any payments and the
manner in which the exchange rate with respect to such payments will
be determined, and any particular related provisions;
(12) if the amount of payments of principal of, premium, if any, and
interest on debt securities are determined with reference to an index,
formula or other method, which may be based, without limitation, on a
currency or currencies other than that in which the debt securities
are denominated or designated to be payable, the index, formula or
other method by which the amounts will be determined;
(13) if other than the full principal amount, the portion of the principal
amount of the debt securities which will be payable upon declaration
of acceleration of maturity;
(14) any changes or additions to events of default or covenants set forth
in the indenture with respect to the debt securities;
(15) the form and terms of any guarantee of the debt securities and the
terms and conditions, if any, upon which any guarantees will be
subordinated to other of our indebtedness or that of any guarantor;
(16) if and as applicable, the terms of any right to exchange for or
convert the debt securities into other of our securities or property;
(17) if we will issue the debt securities in whole or in part in the form
of global securities; and
(18) any other terms of the debt securities.
The debt securities may be offered and sold at a substantial discount below
their stated principal amount and may be "original issue discount securities."
"Original issue discount securities" will bear no interest or interest at a
rate below the prevailing market rate at the time of issuance. In addition,
less than the entire principal amount of these securities will be payable upon
declaration of acceleration of their maturity. We will describe any United
States federal income tax consequences and other special considerations
applicable to any such original issue discount securities in the applicable
prospectus supplement.
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Exchange, Registration, Transfer and Payment
Unless otherwise indicated in the applicable prospectus supplement, the
principal of, premium, if any, and interest on the debt securities will be
payable, and the exchange of and the transfer of debt securities will be
registrable, at our office or agency maintained for such purpose in New York
and at any other office or agency maintained for that purpose. Unless otherwise
indicated in the applicable prospectus supplement, we will issue the debt
securities in denominations of $1,000 or integral multiples of $1,000. Unless
otherwise provided in the debt securities to be transferred or exchanged, no
service charge will be made for any registration of transfer or exchange of the
debt securities, but we may require payment of a sum sufficient to cover any
tax or other governmental charge imposed because of the transactions.
All moneys paid by us to a paying agent for the payment of principal of,
premium, if any, or interest on any debt security which remain unclaimed for
one year after the principal, premium or interest has become due and payable
may be repaid to us, and thereafter the holder of the debt security may look
only to us for payment of those amounts.
In the event of any redemption, we will not be required to (a) issue,
register the transfer of or exchange the debt securities of any series during a
period beginning 15 days before the mailing of a notice of redemption of debt
securities of that series to be redeemed and ending on the date of the mailing
or (b) register the transfer of or exchange any debt security, or portion
thereof, called for redemption, except the unredeemed portion of any debt
security being redeemed in part.
Global Debt Securities and Book-Entry System
The following provisions will apply to the debt securities of any series if
the prospectus supplement relating to such series so indicates.
Unless otherwise indicated in the applicable prospectus supplement, the debt
securities of that series will be issued in book-entry form and will be
represented by one or more global securities registered in the name of The
Depository Trust Company, New York, or its nominee. This means that we will not
issue certificates to each holder. Each global security will be issued to DTC,
which will keep a computerized record of its participants, such as your broker,
whose clients have purchased debt securities. Each participant will then keep a
record of its clients who purchased the debt securities. Unless it is exchanged
in whole or in part for a certificate, a global security may not be
transferred, except that DTC, its nominees, and their successors may transfer a
global security as a whole to one another.
Beneficial interests in global securities will be shown on, and transfers of
global securities will be made only through, records maintained by DTC and its
participants. If you are not a participant in DTC, you may beneficially own
debt securities held by DTC only through a participant.
The laws of some states require that certain purchasers of securities take
physical delivery of the securities in definitive form. These limits and laws
may impair the ability to transfer beneficial interests in a global security.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the United States Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code and a "clearing
agency" registered under the provisions of Section 17A of the Securities
Exchange Act. DTC holds the securities that its participants deposit. DTC also
records the settlement among participants of securities transactions, such as
transfers and pledges, in deposited securities through computerized records for
participants' accounts. This eliminates the need to exchange certificates.
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations. The rules that apply to
DTC and its participants are on file with the SEC.
DTC's book-entry system is also used by other organizations such as
securities brokers and dealers, banks and trust companies that work through a
participant.
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DTC is owned by a number of its participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc.
We will wire payments of principal, premium, if any, and interest to DTC's
nominee. We and the trustee will treat DTC's nominee as the owner of the global
securities for all purposes. Accordingly, we, the trustee and any paying agent
will have no direct responsibility or liability to pay amounts due on the
global securities to owners of beneficial interests in the global securities.
It is DTC's current practice, upon receipt of any payment of principal or
interest, to credit participants' accounts on the payment date according to
their respective holdings of beneficial interests in the global securities as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to participants whose accounts are credited with
debt securities on a record date, by using an omnibus proxy. Payments by
participants to owners of beneficial interests in the global securities, and
voting by participants, will be governed by the customary practices between the
participants and owners of beneficial interests, as is the case with debt
securities held for the account of customers registered in "street name."
However, payments will be the responsibility of the participants and not of
DTC, the trustee or us.
So long as DTC or its nominee is the registered owner of a global security,
DTC or that nominee, as the case may be, will be considered the sole owner or
holder of the debt securities represented by that global security for all
purposes under the indenture. Owners of beneficial interests in a global
security (a) will not be entitled to have the debt securities represented by
that global security registered in their names, (b) will not receive or be
entitled to receive physical delivery of the debt securities in definitive
form, and (c) will not be considered the owners or holders of the debt
securities under the indenture. We will issue debt securities of any series
then represented by global securities in definitive form in exchange for those
global securities if:
. DTC notifies us that it is unwilling or unable to continue as depositary
or if DTC ceases to be a clearing agency registered under applicable law
and a successor depositary is not appointed by us within 90 days; or
. we determine not to require all of the debt securities of a series to be
represented by a global security.
If we issue debt securities in definitive form in exchange for a global
security, an owner of a beneficial interest in the global security will be
entitled to have debt securities equal in principal amount to the beneficial
interest registered in its name and will be entitled to physical delivery of
those debt securities in definitive form. Debt securities issued in definitive
form will, except as set forth in the applicable prospectus supplement, be
issued in denominations of $1,000 and any multiple of $1,000 and will be issued
in registered form only, without coupons.
Covenants
Except as described below or as otherwise provided in the applicable
prospectus supplement with respect to any series of debt securities, we are not
restricted by the indenture from incurring, assuming or becoming liable for any
type of debt or other obligations, from paying dividends or making
distributions on our capital stock or purchasing or redeeming our capital
stock. The indenture does not require the maintenance of any financial ratios
or specified levels of net worth or liquidity. In addition, the indenture does
not contain any provision that would require us to repurchase or redeem or
otherwise modify the terms of any of the debt securities upon a change in
control or other events that may adversely affect the creditworthiness of the
debt securities, such as a highly leveraged transaction.
Unless otherwise indicated in the applicable prospectus supplement, some
covenants contained in the indenture, which are summarized below, will be
applicable to the series of debt securities to which the prospectus supplement
relates so long as any of the debt securities of such series are outstanding.
Terms used in the description of these covenants are defined under "Definitions
Applicable to Covenants" at the end of this section.
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Limitations on Liens. If we or any of our Restricted Subsidiaries incur any
Indebtedness secured by an interest in or lien on any of our assets or those of
any Restricted Subsidiary, we are required to secure the then-outstanding debt
securities equally and ratably with, or, at our option, prior to, the
Indebtedness. The preceding provisions will not require us to secure the debt
securities if the liens consist of either Permitted Liens or liens securing
excepted Indebtedness.
Limitations on Sale and Lease-Back Transactions. We and our Restricted
Subsidiaries will not sell or transfer any assets with the intention of
entering into a lease of the assets for a term of more than three years unless
. the assets have not been owned by us or any of our Restricted
Subsidiaries or have not been in full operation for more than one year
prior to the sale or transfer;
. we or such Restricted Subsidiary could incur Indebtedness secured by a
lien on the assets at least equal in amount to the Attributable Debt
with respect to the transaction without equally and ratably securing the
debt securities under the limitation on liens in the indenture;
. we apply an amount equal to the value of such assets within 120 days of
such sale
-- to the defeasance or retirement, other than any mandatory
retirement, mandatory prepayment or sinking fund payment or by way
of payment at maturity, of debt securities or other Indebtedness
incurred by us or a Restricted Subsidiary that matures more than one
year after the creation of the Indebtedness, or
-- to the purchase, construction or development of other comparable
property; or
. the transaction is between us and any of our Restricted Subsidiaries.
Excepted Indebtedness. Notwithstanding the foregoing limitations on liens
and sale and lease-back transactions, and without limiting our or any
Restricted Subsidiary's ability to issue, incur, create, assume or guarantee
Indebtedness secured by Permitted Liens, we or any Restricted Subsidiary will
be permitted to incur Indebtedness secured by a lien or may enter into a sale
and lease-back transaction, in either case, without regard to the restrictions
contained in the preceding two paragraphs, if the sum of (a) the aggregate
principal amount of all Indebtedness secured by liens, other than Permitted
Liens, or, if less, the fair market value of the property subject to the lien,
as determined in good faith by our board of directors and (b) the Attributable
Debt of all such sale and lease-back transactions, in each case not otherwise
permitted in the preceding two paragraphs, does not exceed 10% of Consolidated
Net Worth.
Restrictions on Subsidiary Debt. The indenture provides that we will not
permit any Restricted Subsidiary to create, incur, issue, assume or guarantee
any Funded Debt, except:
(1) Funded Debt outstanding on the date of the indenture;
(2) Funded Debt incurred by a Restricted Subsidiary and held by us or any
other Subsidiary;
(3) Funded Debt incurred by a person, including an entity, prior to the
time
. the person became a Restricted Subsidiary;
. the person merges into or consolidates with a Restricted Subsidiary;
or
. a Restricted Subsidiary merges into or consolidates with the person,
in a transaction in which the person becomes a Restricted
Subsidiary;
in each case which Funded Debt was not incurred in anticipation of the
transaction and was outstanding prior to the transaction;
(4) Funded Debt incurred to provide funds for all or part of the cost of
acquisition, construction, development or improvement of property,
including shares of equity interests, provided, however, that the
commitment of the creditor to extend the credit evidenced by the Funded
Debt was obtained not later than 180 days after the later of
. the completion of the acquisition, construction, development or
improvement of the property, or
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. the placing in operation of the property;
(5) Funded Debt which is exchanged for, or the proceeds of which are used
to replace or refund, any Funded Debt permitted to be outstanding under
items (1) through (4) above, or any extension or renewal of the Funded
Debt, in an aggregate principal amount not to exceed the principal
amount of the Indebtedness so exchanged, replaced or refunded;
(6) Funded Debt not otherwise permitted under items (1) through (5) above
that, together with any other outstanding Funded Debt incurred pursuant
to this item (6), has an aggregate principal amount at any time
outstanding that does not exceed 15% of Consolidated Net Worth; and
(7) Funded Debt which would be permitted to be incurred under "Limitations
on Liens."
Definitions Applicable to Covenants. The term "Attributable Debt" means,
with respect to any sale and lease-back transaction, at the time of
determination, the lesser of
. the fair market value of the property subject to the transaction, as
determined in good faith by our board of directors;
. the present value, discounted at the lease's identified or implicit rate
of interest, if determinable, of the total net amount of rent (as
described below) required to be paid under the lease during the
remaining term of the lease, including any renewal term or period for
which the lease has been extended; or
. if the obligation with respect to the sale and lease-back transaction
constitutes an obligation that we must classify and account for as a
capitalized lease for financial reporting purposes in accordance with
GAAP, the amount equal to the capitalized amount of the obligation
determined in accordance with GAAP and included in the financial
statements of the lessee.
The term "rent" does not include amounts required to be paid by the lessee,
whether or not designated as rent or additional rent, on account of or
contingent upon maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges. In the case of any lease that is terminable by the
lessee upon the payment of a penalty, the net amount of rent will be the lesser
of (a) the net amount determined assuming termination upon the first date the
lease may be terminated, in which case the net amount will also include the
amount of the penalty, but no rent will be considered as required to be paid
under the lease subsequent to the first day upon which it may be so terminated
and (b) the net amount determined assuming no termination.
The term "Consolidated Net Worth" means, at any date of determination,
. our total assets and those of our Subsidiaries, including, without
limitation, all items that are treated as intangibles in accordance with
GAAP, at such date, less
. our total liabilities and those of our Subsidiaries, including, without
limitation, all deferred taxes, at such date,
in each case determined on a consolidated basis and in accordance with GAAP;
provided, however, that the term "Consolidated Net Worth" will not give effect
to any cumulative translation adjustments, whether positive or negative, at any
such date.
The term "Funded Debt" means Indebtedness incurred, assumed or guaranteed
maturing by its terms more than one year from its date of creation or which is
extendable or renewable at the option of the obligor so as to be payable more
than one year from its date of creation, provided, however, that Funded Debt
will not include obligations created under leases, or any Indebtedness or
portion of Indebtedness maturing by its terms within one year from the time of
any computation of the amount of outstanding Funded Debt, unless it is
extendable or renewable at the sole option of the obligor so as to be payable
more than one year from the date of computation, or any Indebtedness, the
payment or redemption of which money in the necessary amount has been deposited
in trust either at or before the maturity or redemption date.
The term "Indebtedness" means, with respect to any person, without
duplication for indebtedness or other obligations of the person, any
indebtedness of the person for money borrowed, whether incurred, assumed or
guaranteed, and including obligations under capitalized leases.
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The term "Permitted Liens" means
(1) liens on property or assets acquired or held by us or any of our
Restricted Subsidiaries incurred to secure the payment of all or any
part of the purchase price of the property or assets or to secure
Indebtedness incurred prior to, at the time of, or within 180 days
after the acquisition for the purpose of financing all or any part of
the purchase price, or liens existing on any property or assets at the
time of its acquisition, other than any liens created in contemplation
of the acquisition that were not incurred to finance all or any part of
the purchase price of the property or assets; provided, however, that
the lien does not extend to or cover any property or assets of any
character other than the property or assets being acquired; and
provided, further, that any Indebtedness secured by the liens are
otherwise permitted under the terms of the indenture;
(2) liens on property or assets of a person, including any entity, other
than us or any of our Restricted Subsidiaries, existing at the time we
or our Restricted Subsidiaries purchase or acquire the property or
asset, provided, however, that the liens were not created in
contemplation of the purchase or other acquisition and do not extend to
any property or assets other than those so purchased or otherwise
acquired;
(3) liens affecting property or assets of a person, other than us or any
of our Restricted Subsidiaries, existing at the time the person merges
into or consolidates with us or a Restricted Subsidiary or becomes a
Restricted Subsidiary or at the time of the sale, lease or other
disposition of the property or assets as an entirety or substantially
as an entirety to us or a Restricted Subsidiary, provided, however,
that the liens were not created in contemplation of the merger,
consolidation or acquisition and do not extend to any property or
assets other than those of the person so merged into or consolidated
with, or acquired by, us or such Restricted Subsidiary;
(4) liens to secure Indebtedness owing by a Restricted Subsidiary to us
or to a Restricted Subsidiary;
(5) liens existing on the date of initial issuance of the debt securities
of a particular series;
(6) liens in favor of the United States or any of its States, territories
or possessions, or the District of Columbia, or any department, agency,
instrumentality or political subdivision of any of those political
entities, to secure partial, progress, advance or other payments;
(7) liens on any property to secure all or part of the cost of its
alteration, repair or improvement or Indebtedness incurred to provide
funds for this purpose in a principal amount not exceeding the cost of
the improvements or construction;
(8) purchase money liens on personal property;
(9) liens, including judgment liens, arising in connection with legal
proceedings, taxes, fees, assessments or other governmental charges, so
long as such proceedings, taxes, fees, assessments or other
governmental charges are being contested in good faith and, in the case
of judgment liens, execution on the liens is stayed and for which we
have established any reserves required in accordance with GAAP;
(10) carriers', warehousemen's, mechanics', landlords', materialmens',
repairmens' or other similar liens arising in the ordinary course of
business which are not overdue for a period of more than 90 days or are
being contested in good faith by appropriate proceedings diligently
pursued, provided, however, that
. any proceedings commenced for the enforcement of the liens have been
stayed or suspended within 30 days after their commencement, and
. provision for the payment of the liens has been made on our books to
the extent required by GAAP;
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(11) easements, rights-of-way, zoning restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the underlying property or
interfere with the ordinary conduct of our business or that of any
Restricted Subsidiary;
(12) pledges or deposits to secure obligations under workers' compensation
laws or other similar legislation, other than in respect of employee
benefit plans subject to the Employee Retirement Security Act of 1974,
or to secure public or statutory obligations;
(13) liens securing the performance of, or payment in respect of, bids,
tenders, government contracts, other than for the repayment of
borrowed money, surety and appeal bonds and other obligations of a
similar nature incurred in the ordinary course of business;
(14) any interest or title of a lessor or sublessor and any restriction or
encumbrance to which the interest or title of the lessor or sublessor
may be subject that is incurred in the ordinary course of business;
and
(15) extensions, renewals or replacements of any lien referred to in the
above items; provided, however, that any liens permitted by any of the
above items do not extend to or cover any of our property or that of
the Restricted Subsidiary, as the case may be, other than the property
specified in these items and improvements to that property; and
provided, further, that any Indebtedness secured by the liens is
otherwise permitted under the terms of the indenture.
The term "Restricted Subsidiary" means any Subsidiary which meets any of the
following conditions:
. our and our other Subsidiaries' investments in and advances to the
Subsidiary exceed 10% of our total assets and those of our
subsidiaries consolidated as of the end of the most recently
completed fiscal year;
. our and our other Subsidiaries' proportionate share of the total
assets, after intercompany eliminations, of the Subsidiary exceed 10%
of our total assets and those of our subsidiaries consolidated as of
the end of the most recently completed fiscal year; or
. our and our other Subsidiaries' equity in the income from continuing
operations before income taxes, extraordinary items and cumulative
effect of changes in accounting principles of the Subsidiary exceeds
10% of our income and that of our subsidiaries consolidated for the
most recently completed fiscal year;
provided, however, that the term "Restricted Subsidiary" does not include any
Subsidiary less than 60% of the capital stock with voting power, under ordinary
circumstances, to elect directors of which is owned, directly or indirectly, by
us or by one or more of our other Subsidiaries, or by us and one or more of our
other Subsidiaries, if the common stock of that Subsidiary is traded on any
national securities exchange or quoted on the Nasdaq National Market or in the
over-the-counter market.
The term "Subsidiary" means, with respect to any person, including any
entity, any corporation, partnership, joint venture, limited or unlimited
liability company, trust or estate of which, or in which, more than 50% of:
. the issued and outstanding shares of capital stock having voting
power, under ordinary circumstances, to elect directors of the
corporation, irrespective of whether at the time shares of capital
stock of any other class or classes of the corporation have or might
have voting power upon the occurrence of any contingency;
. the interest in the capital or profits of the limited or unlimited
liability company, partnership or joint venture; or
. the beneficial interest in the trust or estate,
is at the time, directly or indirectly, owned or controlled by the person, by
the person and one or more of its other Subsidiaries or by one or more of the
person's other Subsidiaries.
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Consolidation, Merger and Sale of Assets
We may not consolidate or merge with or into, any other person, including
any other entity, or convey, transfer or lease all or substantially all of our
properties and assets to any person or group of affiliated persons unless
. we are the continuing corporation or the person, if other than us,
formed by such consolidation or with which or into which we are
merged or the person to which all or substantially all our
properties and assets are conveyed, transferred or leased is a
corporation organized and existing under the laws of the United
States, any of its States or the District of Columbia and expressly
assumes our obligations under the debt securities and the indenture;
and
. immediately after giving effect to the transaction, there is no
default and no event of default under the indenture.
If we consolidate with or merge into any other corporation or convey,
transfer or lease all or substantially all of our property and assets as
described in the preceding paragraph, the successor corporation shall succeed
to and be substituted for us, and may exercise our rights and powers under the
indenture, and thereafter, except in the case of a lease, we will be relieved
of all obligations and covenants under the indenture and all outstanding debt
securities.
Events of Default
Unless otherwise specified in the applicable prospectus supplement, "events
of default" under the indenture with respect to debt securities of any series
will include:
(1) default in the payment of interest on any debt security of that series
when due that continues for a period of 30 days;
(2) default in the payment of principal of or premium on any debt security
of that series when due;
(3) default in the deposit of any sinking fund payment when due;
(4) failure to comply with any of our other agreements contained in the
indenture for a period of 60 days after notice to us by the trustee or
by the holders of at least 25% in principal amount of the debt
securities of that series;
(5) occurrence of an event of default within the meaning of another
mortgage, indenture or debt instrument under which there may be issued
any of our Indebtedness, other than the debt securities of such series,
in an amount in excess of $10,000,000 and which
. consists of default in the payment of the Indebtedness at maturity,
after giving effect to any applicable grace period, or
. results in the Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise become due and
payable, and we have not cured the default in payment or the
acceleration is not rescinded or annulled within 10 days after
written notice to us from the trustee or to us and to the trustee
from the holders of at least 25% in principal amount of the debt
securities of that series; provided, however, that if, prior to a
declaration of acceleration of the maturity of the debt securities
of that series or the entry of judgment in favor of the trustee in a
suit pursuant to the indenture, the default has been remedied or
cured by us or waived by the holders of the Indebtedness, then the
event of default will be deemed likewise to have been remedied,
cured or waived; and
(6) certain events of bankruptcy, insolvency or reorganization with respect
to us and our Restricted Subsidiaries.
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No event of default with respect to a particular series of debt securities,
except as to certain events involving bankruptcy, insolvency or reorganization
with respect to us, necessarily constitutes an event of default with respect to
any other series of debt securities.
In general, the indenture obligates the trustee to give notice of a default
with respect to a series of debt securities to the holders of that series. The
trustee may withhold notice of any default, except a default in payment on any
debt security, if the trustee determines it is in the best interest of the
holders of that series to do so.
If there is a continuing event of default, the trustee or the holders of at
least 25% in principal amount of the debt securities of an affected series may
require us to repay immediately the unpaid principal, or if the debt securities
of that series are original issue discount securities, the portion of the
principal amount as may be specified in the terms of that series, of and
interest on all debt securities of that series. In the case of an event of
default resulting from events of bankruptcy, insolvency or reorganization, the
principal, or such specified amount, of and interest on all debt securities of
that series will become immediately payable without any act on the part of the
trustee or any holder of debt securities. Subject to certain conditions, the
holders of a majority in principal amount of the debt securities of a series
may rescind our obligation to accelerate repayment and may waive past defaults,
except a default in payment of the principal of and premium, if any, and
interest on any debt security of that series and some covenant defaults.
The trustee may refuse to enforce the indenture or the debt securities
unless it first receives satisfactory security or indemnity from the holders of
debt securities. Subject to limitations specified in the indenture, the holders
of a majority in principal amount of the debt securities of any series will
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.
No holder of any debt security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to the indenture
or for the appointment of a receiver or trustee, or for any other remedy under
the indenture unless:
. the holder shall have previously given to the trustee written notice
of a continuing event of default with respect to debt securities of
that series, and
. the holders of at least 25% in principal amount of the debt
securities of that series have made written request, and offered
reasonable indemnity, to the trustee to institute such proceeding as
trustee, and the trustee has not received from the holders of a
majority in principal amount of the debt securities of that series a
direction inconsistent with the request and has failed to institute
the proceeding within 60 days.
Notwithstanding the foregoing, the holder of any debt security will have an
absolute and unconditional right to receive payment of the principal of and
premium, if any, and interest on the debt security on or after the due dates
expressed in the debt security and to institute suit for the enforcement of any
such payment.
The indenture requires us to furnish to the trustee annually a certificate
as to our compliance with the indenture.
Modification of the Indenture
The indenture permits us and the trustee to amend the indenture without the
consent of the holders of any of the debt securities
(1) to evidence the succession of another corporation and the assumption of
our covenants under the indenture and the debt securities;
(2) to add to our covenants or to the events of default or to make certain
other changes which would not adversely affect in any material respect
the holder of any outstanding debt securities;
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(3) to cure any ambiguity, defect or inconsistency; and
(4) for other purposes as described in the indenture.
The indenture also permits us and the trustee, with the consent of the
holders of a majority in principal amount of the debt securities of each series
affected by the amendment, with each such series voting as a class, to add any
provisions to or change or eliminate any of the provisions of the indenture or
any supplemental indenture or to modify the rights of the holders of debt
securities of each series, provided, however, that, without the consent of the
holder of each debt security so affected, no such amendment may
(1) change the maturity or principal of or premium, if any, or any
installment of principal or interest on any debt security;
(2) reduce the principal amount of any debt security, or the rate of
interest or any premium payable upon the redemption, repurchase or
repayment of any debt security, or change the manner in which the
amount of any of the foregoing is determined;
(3) reduce the amount of principal payable upon acceleration of maturity;
(4) change the place of payment where, or the currency or currency unit in
which, any debt security or any premium or interest on the debt
security is payable;
(5) reduce the percentage in principal amount of affected debt securities
the consent of whose holders is required for amendment of the indenture
or for waiver of compliance with some provisions of the indenture or
for waiver of some defaults;
(6) change our obligation with respect to the redemption provisions of the
indenture in a manner adverse to the holder; or
(7) modify the provisions relating to waiver of some defaults or any of the
provisions relating to amendment of the indenture except to increase
the percentage required for consent or to provide that some other
provisions of the indenture may not be modified or waived.
The holders of a majority in principal amount of the debt securities of any
series may, on behalf of the holders of all debt securities of that series,
waive, insofar as is applicable to that series, our compliance with some
restrictive provisions of the indenture.
Defeasance and Covenant Defeasance
We may elect either
. to be discharged from all our obligations in respect of debt
securities of any series, except for our obligations to register the
transfer or exchange of debt securities, to replace temporary,
destroyed, stolen, lost or mutilated debt securities, to maintain
paying agencies and to hold monies for payment in trust (we will
refer to this discharge as "defeasance"), or
. to be released from our obligations to comply with some restrictive
covenants applicable to the debt securities of any series (we will
refer to this release as "covenant defeasance");
in either case upon the deposit with the trustee, or other qualifying trustee,
in trust, of money and/or U.S. government obligations which will provide money
sufficient to pay all principal of and any premium and interest on the debt
securities of each series when due. We may establish such a trust only if,
among other things, we have received an opinion of counsel to the effect that
the holders of debt securities of the series (a) will not recognize income,
gain or loss for federal income tax purposes as a result of the deposit,
defeasance or covenant defeasance and (b) will be subject to federal income tax
on the same amounts, and in the same manner and at the same times as would have
been the case if the deposit, defeasance or covenant defeasance had not
occurred. The opinion, in the case of defeasance under the first bullet point
above, must refer to and be
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based upon a ruling of the Internal Revenue Service or a change in applicable
federal income tax laws occurring after the date of the indenture.
We may exercise the defeasance option with respect to debt securities
notwithstanding our prior exercise of the covenant defeasance option. If we
exercise the defeasance option, payment of the debt securities may not be
accelerated because of a default. If we exercise the covenant defeasance
option, payment of the debt securities may not be accelerated by reason of a
default with respect to the covenants to which covenant defeasance is
applicable. However, if the acceleration were to occur by reason of another
default, the realizable value at the acceleration date of the money and U.S.
government obligations in the defeasance trust could be less than the principal
and interest then due on the debt securities, in that the required deposit in
the defeasance trust is based upon scheduled cash flow rather than market
value, which will vary depending upon interest rates and other factors.
Regarding the Trustee
The trustee with respect to any series of debt securities will be identified
in the prospectus supplement relating to the debt securities.
The indenture contains limitations on the rights of the trustee, should it
become our creditor, to obtain payment of claims in some cases, or to realize
on specified property received in respect of these claims, as security or
otherwise. The trustee and its affiliates may engage in, and will be permitted
to continue to engage in, other transactions with us and our affiliates,
provided, however, that if it acquires any conflicting interest as described
under the Trust Indenture Act of 1939, it must eliminate the conflict or
resign.
DESCRIPTION OF PREFERRED STOCK
Under our certificate of incorporation, we may issue, in one or more classes
or series, up to 100,000 shares of preferred stock, with such powers,
preferences and relative, participating, optional or other special rights and
qualifications, limitations or restrictions as are designated in resolutions
adopted by our board of directors or one of its committees. No shares of
preferred stock are currently outstanding, but 45,000 shares of preferred stock
are reserved for issuance in connection with the Rights Agreement, dated
November 4, 1998, as amended, between us and The First Chicago Trust Company of
New York, as Rights Agent. Under the Rights Agreement, each share of our common
stock is issued together with one right entitling its holder, upon the
occurrence of events described in the Rights Agreement, to purchase from us, at
a price of $100, subject to adjustment, one two-thousandth of a share of our
Series B Junior Participating Preferred Stock.
The preferred stock, if and when issued, will be fully paid and
nonassessable and holders of the preferred stock will have no preemptive
rights.
The specific terms of any preferred stock offered by this prospectus will be
described in the prospectus supplement relating to such preferred stock, and
the summaries of the provisions of the preferred stock contained in this
prospectus and in the prospectus supplement are subject to, and are qualified
by reference to, our certificate of incorporation and the certificate of
designation relating to the particular class or series of preferred stock. You
should refer to the prospectus supplement relating to the preferred stock being
offered for the specific terms, including:
(1) the designation of the preferred stock;
(2) the number of shares of the preferred stock offered, the liquidation
preference per share and the initial offering price of the preferred
stock;
(3) the dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation applicable to the preferred stock;
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(4) the date from which dividends on the preferred stock will accumulate,
if applicable;
(5) the procedures for any auction and remarketing, if any, of the
preferred stock;
(6) the provision of a sinking fund, if any, for the preferred stock;
(7) the provision for redemption, if applicable, of the preferred stock;
(8) any listing of the preferred stock on any securities exchange;
(9) the terms and conditions, if applicable, upon which the preferred
stock will be convertible into or exchangeable for our common stock or
other securities, and whether at our option or the option of the
holder;
(10) whether the preferred stock will rank senior or junior to or on a
parity with any other class or series of preferred stock;
(11) the voting rights, if any, of the preferred stock;
(12) any other specific terms, preferences, rights, limitations or
restrictions of the preferred stock; and
(13) a discussion of federal income tax considerations applicable to the
preferred stock.
Subject to our certificate of incorporation and to any limitations contained
in the then-outstanding preferred stock, we may issue additional classes or
series of preferred stock, at one or more times, with such powers, preferences
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions, as our board of directors or one
of its committees determines, all without further action of our stockholders,
including holders of then-outstanding preferred stock.
In the event of any voluntary liquidation, dissolution or winding up of our
affairs, the holders of any class or series of preferred stock will be entitled
to receive in full out of our assets, including our capital, before any amount
will be paid or distributed among the holders of our common stock or any other
shares ranking junior to such class or series, the amounts fixed with respect
to the class or series and described in the applicable prospectus supplement
plus, if additionally provided for, an amount equal to all accrued and unpaid
dividends to the date of payment of the amount due pursuant to such
liquidation, dissolution or winding up of our affairs. After payment to the
holders of the preferred stock of the full preferential amounts to which they
are entitled, the holders of preferred stock, as such, will have no right or
claim to any of our remaining assets.
Our merger or consolidation into or with any other corporation, or the sale,
lease or conveyance of all or substantially all of our assets, will not
constitute a liquidation, dissolution or winding up.
DESCRIPTION OF DEPOSITARY SHARES
We may, at our option, elect to offer depositary shares rather than full
shares of preferred stock. In the event we exercise this option, each of the
depositary shares will represent ownership of and entitlement to all rights and
preferences of a fraction of a share of preferred stock of a specified series,
including dividend, voting, redemption and liquidation rights. The applicable
fraction will be specified in the applicable prospectus supplement. The shares
of preferred stock represented by the depositary shares will be deposited with
a depositary named in the applicable prospectus supplement under a deposit
agreement among us, the depositary and the holders of depositary receipts. The
depositary receipts will be delivered to persons purchasing depositary shares
in the offering. The depositary will be the transfer agent, registrar and
dividend disbursing agent for the depositary shares. Holders of depositary
receipts agree to be bound by the deposit agreement, which requires holders to
take actions such as filing proof of residence and paying various charges.
The summary of terms of the depositary shares contained in this prospectus
does not purport to be complete and is subject to, and qualified by, the
provisions of the deposit agreement, our certificate of incorporation and the
certificate of designation for the applicable series of preferred stock.
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Dividends
The depositary will distribute all cash dividends or distributions received
in respect of the series of preferred stock represented by the depositary
shares to the record holders of depositary receipts in proportion to the number
of depositary shares owned by the holders on the relevant record date, which
will be the same date as the record date fixed by us for the applicable series
of preferred stock.
In the event of a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary
receipts, in proportion, as nearly as may be practicable, to the number of
depositary shares owned by the holders on the relevant record date, unless the
depositary determines, after consultation with us, that it is not feasible to
make the distribution, in which case the depositary may, with our approval,
adopt any other method for the distribution as it deems appropriate, including
the sale of such property and distribution of the net proceeds from the sale to
the holders.
Liquidation Preference
In the event of the liquidation, dissolution or winding up of our affairs,
whether voluntary or involuntary, each depositary share will represent, and the
owner of the depositary share will be entitled to, the applicable fraction, as
specified in the applicable prospectus supplement, of the liquidation
preference accorded each share of preferred stock of the applicable series.
Redemption
If the series of preferred stock represented by the applicable series of
depositary shares is redeemable, the depositary shares will be redeemed from
the proceeds received by the depositary resulting from the redemption, in whole
or in part, of preferred stock held by the depositary. Whenever we redeem any
preferred stock held by the depositary, the depositary will redeem as of the
same redemption date the number of depositary shares representing the preferred
stock so redeemed. The depositary will mail the notice of redemption promptly
upon receipt of the notice from us and not less than 35 nor more than 60 days
prior to the date fixed for redemption of the preferred stock and the
depositary shares to the record holders of the depositary receipts.
Voting
Promptly upon receipt of notice of any meeting at which the holders of the
series of preferred stock represented by the applicable series of depositary
shares are entitled to vote, the depositary will mail the information contained
in the notice of meeting to the record holders of the depositary receipts as of
the record date for the meeting. Each record holder of depositary receipts will
be entitled to instruct the depositary as to the exercise of the voting rights
pertaining to the number of shares of preferred stock represented by the record
holder's depositary shares. The depositary will endeavor, insofar as
practicable, to vote the preferred stock represented by the depositary shares
in accordance with the instructions, and we will agree to take all action which
may be deemed necessary by the depositary in order to enable the depositary to
do so. The depositary will abstain from voting any of the preferred stock to
the extent that it does not receive specific instructions from the holders of
depositary receipts.
Withdrawal of Preferred Stock
Upon surrender of depositary receipts at the principal office of the
depositary, upon payment of any unpaid amount due the depositary, and subject
to the terms of the deposit agreement, the owner of depositary shares has the
right to delivery of the number of whole shares of preferred stock and all
money and other property, if any, represented by the depositary shares. Partial
shares of preferred stock will not be issued. If the depositary receipts
delivered by the holder evidence a number of depositary shares in excess of the
number of depositary shares representing the number of whole shares of
preferred stock to be withdrawn, the depositary will deliver to such holder at
the same time a new depositary receipt evidencing the excess number of
depositary shares.
19
<PAGE>
Holders of preferred stock thus withdrawn will not thereafter be entitled to
deposit the shares under the deposit agreement or to receive depositary
receipts evidencing depositary shares.
Amendment and Termination of Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may at any time and from time to time be
amended by agreement between us and the depositary. However, any amendment
which materially and adversely alters the rights of the holders, other than any
change in fees, of depositary shares will not be effective unless approved by
at least a majority of the depositary shares then outstanding. No such
amendment may impair the right, subject to the terms of the deposit agreement,
of any owner of any depositary shares to surrender the depositary receipt
evidencing the depositary shares with instructions to the depositary to deliver
to the holder the preferred stock and all money and other property, if any,
represented by the depositary shares, except in order to comply with mandatory
provisions of applicable law. The deposit agreement may be terminated by us or
the depositary only if (a) all outstanding depositary shares have been redeemed
or (b) there has been a final distribution in respect of the preferred stock in
connection with our dissolution and the distribution has been made to all the
owners of depositary shares.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements, but not on the
revenue or income of the depositary. We will pay charges of the depositary in
connection with the initial deposit of the preferred stock and the initial
issuance of the depositary shares, any redemption of the preferred stock and
all withdrawals of preferred stock by owners of depositary shares. Holders of
depositary receipts will pay transfer, income and other taxes and governmental
charges and certain other charges as are provided in the deposit agreement to
be for their accounts. In certain circumstances, the depositary may refuse to
transfer depositary shares, may withhold dividends and distributions and sell
the depositary shares evidenced by the depositary receipt if the charges are
not paid.
Miscellaneous
The depositary will forward to the holders of depositary receipts all
reports and communications from us which are delivered to the depositary and
which we are required to furnish to the holders of the preferred stock. In
addition, the depositary will make available for inspection by holders of
depositary receipts at the principal office of the depositary, and at such
other places as it may from time to time deem advisable, any reports and
communications received from us which are received by the depositary as the
holder of preferred stock.
Neither we nor the depositary assumes any obligation or will be subject to
any liability under the deposit agreement to holders of depositary receipts
other than for negligence or willful misconduct. Neither we nor the depositary
will be liable if prevented or delayed by law or any circumstance beyond our or
their control in performing the obligations under the deposit agreement. Our
obligations and those of the depositary under the deposit agreement will be
limited to performance in good faith of the duties under the deposit agreement,
and neither we nor the depositary will be obligated to prosecute or defend any
legal proceeding in respect of any depositary shares or preferred stock unless
satisfactory indemnity is furnished. We and the depositary may rely on written
advice of counsel or accountants, on information provided by holders of
depositary receipts or other persons believed in good faith to be competent to
give the information and on documents believed to be genuine and to have been
signed or presented by the proper party or parties.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us notice of its
election to do so, and we may at any time remove the depositary, any such
resignation or removal to take effect upon the appointment of a successor
depositary and its acceptance of the appointment. The successor depositary must
be appointed within
20
<PAGE>
60 days after delivery of the notice for resignation or removal and must be a
bank or trust company having its principal office in the United States and
having a combined capital and surplus of at least $150,000,000.
PLAN OF DISTRIBUTION
We may sell securities being offered by this prospectus in three ways: (a)
through agents, (b) through underwriters and (c) through dealers.
We may designate agents from time to time to solicit offers to purchase
these securities. We will name any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act of 1933, and state
any commissions we are to pay to that agent in the applicable prospectus
supplement. That agent will be acting on a reasonable efforts basis for the
period of its appointment or, if indicated in the applicable prospectus
supplement, on a firm commitment basis.
If we use any underwriters to offer and sell these securities, we will enter
into an underwriting agreement with those underwriters when we and they
determine the offering price of the securities, and we will include the names
of the underwriters and the terms of the transaction in the applicable
prospectus supplement.
If we use a dealer to offer and sell these securities, we will sell the
securities to the dealer, as principal, and will name the dealer in the
applicable prospectus supplement. The dealer may then resell the securities to
the public at varying prices to be determined by that dealer at the time of
resale.
Our net proceeds will be the purchase price in the case of sales to a
dealer, the public offering price less discount in the case of sales to an
underwriter or the purchase price less commission in the case of sales through
an agent--in each case, less other expenses attributable to issuance and
distribution.
The securities will be new issues of securities with no established trading
market. It has not presently been established whether the underwriters, if any,
of the securities will make a market in the securities. If a market in the
securities is made by any such underwriters, such market-making may be
discontinued at any time without notice. We can give no assurance as to the
liquidity of the trading market for the securities.
In order to facilitate the offering of the securities, the underwriters may
engage in transactions that stabilize, maintain or otherwise affect the price
of the securities or any other securities the prices of which may be used to
determine payments on the securities. Specifically, the underwriters may over-
allot in connection with the offering, creating a short position in the
securities for their own accounts. In addition, to cover over-allotments or to
stabilize the price of the securities or of any such other securities, the
underwriters may bid for, and purchase, the securities or any such other
securities in the open market. Finally, in any offering of the securities
through a syndicate of underwriters, the underwriting syndicate may reclaim
selling concessions allowed to an underwriter or a dealer for distributing the
securities in the offering if the syndicate repurchases previously distributed
securities in transactions to cover syndicate short positions, in stabilization
transactions or otherwise. Any of these activities may stabilize or maintain
the market price of the securities above independent market levels. The
underwriters are not required to engage in these activities, and may end any of
these activities at any time.
If so indicated in the applicable prospectus supplement, one or more firms,
which we refer to as "remarketing firms," acting as principals for their own
accounts or as agents for us, may offer and sell the securities as part of a
remarketing upon their purchase, in accordance with their terms. We will
identify any remarketing firm, the terms of its agreement, if any, with us and
its compensation in the applicable prospectus supplement. Remarketing firms,
agents, underwriters and dealers may be entitled, under the agreements with us,
to indemnification by us against some civil liabilities, including liabilities
under the Securities Act, and may be customers of, engage in transactions with
or perform services for us in the ordinary course of business.
21
<PAGE>
If so indicated in the applicable prospectus supplement, we will authorize
agents, underwriters or dealers to solicit offers by some purchasers to
purchase any securities from us at the public offering price stated in the
prospectus supplement under delayed delivery contracts providing for payment
and delivery on a specified date in the future. These contracts will be subject
to only those conditions described in the applicable prospectus supplement, and
the prospectus supplement will state the commission payable for solicitation of
these offers.
Any underwriter, agent or dealer utilized in the initial offering of
securities will not confirm sales to accounts over which it exercises
discretionary authority without the prior specific written approval of its
customer.
Certain underwriters or agents and their associates may be customers of
(including borrowers from), engage in transactions with, and/or perform
services for, us and our subsidiaries, or the Trustee, in the ordinary course
of business.
LEGAL MATTERS
Sidley & Austin, One First National Plaza, Chicago, Illinois 60603 will
issue an opinion for us about certain legal matters in connection with the
legality of the securities.
EXPERTS
Our consolidated financial statements included, or incorporated by
reference, in our Annual Report on Form 10-K for the year ended December 31,
1998 have been audited by Arthur Andersen LLP, independent public accountants,
as indicated in their reports with respect thereto, and are incorporated in
this prospectus in reliance upon the authority of Arthur Andersen LLP as
experts in giving said reports.
The consolidated statements of operations, cash flows and stockholders'
equity of Bozell, Jacobs, Kenyon & Eckhardt, Inc. and its subsidiaries for the
year ended March 31, 1997 were audited by KPMG LLP, independent certified
public accountants, and are included in the consolidated financial statements
of True North Communications Inc. for the year ended December 31, 1996. The
report of KPMG LLP on the statements of operations, cash flows and
stockholders' equity of Bozell, Jacobs, Kenyon & Eckhardt, Inc. and
subsidiaries for the year ended March 31, 1997 are incorporated by reference in
reliance upon the authority of KPMG LLP as experts in accounting and auditing.
22
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Expenses payable in connection with the distribution of the securities being
registered (estimated except for the registration fee), all of which will be
borne by the Registrant, are as follows:
<TABLE>
<S> <C>
Registration Fee................................................ $ 69,500
Trustee's Fees and Expenses..................................... $ 7,000
Printing and Engraving Fees..................................... $ 50,000
Legal Fees and Expenses......................................... $ 50,000
Blue Sky Fees and Expenses...................................... $ 15,000
Accounting Fees and Expenses.................................... $ 20,000
Rating Agency Fees.............................................. $100,000
Miscellaneous Expenses.......................................... $ 13,500
--------
$325,000
</TABLE>
Item 15. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, the Company has
broad powers to indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act of
1933. The Company's Bylaws also provide that the Company will indemnify its
directors, officers, employees and other agents to the fullest extent permitted
by Delaware law.
The Company's Restated Certificate of Incorporation, as amended, provides
for the elimination of liability for monetary damages for breach of the
directors' fiduciary duty of care to the Company or its stockholders. These
provisions do not eliminate the directors' duty of care and, in appropriate
circumstances, equitable remedies such as injunctive or other forms of non-
monetary relief will remain available under Delaware law. In addition, each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Company or its stockholders, for acts or omissions not
in good faith or involving intentional misconduct, for knowing violations of
law, for any transaction from which the director derived an improper personal
benefit, or for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision does not affect
a director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
Furthermore, the Company has secured insurance covering the Company and its
directors and officers and those of its principal subsidiaries against certain
liabilities.
II-1
<PAGE>
Item 16. Exhibits and Financial Statement Schedules.
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
------- ----------------------
<C> <S>
1.1 Form of Underwriting Agreement (for Debt Securities).*
1.2 Form of Underwriting Agreement (for Preferred Stock and Depositary
Shares).*
4.1 Registrant's Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3(i) to Registrant's Form 10-K for the year ended
December 31, 1994).
4.2 Certificate of Ownership and Merger changing Registrant's name to True
North Communications Inc. (incorporated by reference to Exhibit (3)(i)
to Registrant's Current Report on Form 8-K filed December 9, 1994).
4.3 Certificate of Amendment of Restated Certificate of Incorporation,
filed in Delaware on
December 30, 1997 (incorporated by reference to Exhibit 4.6 to
Registrant's Annual Report on Form 10-K for the year ended December
31, 1997).
4.4 Certificate of Designation of Series B Junior Participating Preferred
Stock, filed in Delaware on November 5, 1998 (incorporated by
reference to Exhibit 4.3 to Registrant's Registration Statement on
Form S-3 filed December 7, 1998 (File No. 333-68485)).
4.5 Registrant's Bylaws, as amended through May 26, 1999.
4.6 Rights Agreement dated as of November 4, 1998 between Registrant and
The First Chicago Trust Company of New York, as Rights Agent
(incorporated by reference to Exhibit 4.1 to Registrant's Current
Report on Form 8-K under the Securities Exchange Act of 1934 dated
November 4, 1998).
4.7 First Amendment to Rights Agreement dated as of April 12, 1999 between
Registrant and The First Chicago Trust Company of New York, as Rights
Agent (incorporated by reference to Exhibit 4.1 to Registrant's
Current Report on Form 8-K under the Securities Exchange Act of 1934
dated
April 16, 1999).
4.8 Form of Certificate of Designation with Respect to Preferred Stock.*
4.9 Form of Indenture.
4.10 Form of Debt Security (included in Exhibit 4.9).
4.11 Form of Depositary Agreement.*
5.1 Opinion of Sidley & Austin as to the legality of the Securities
registered hereunder.*
12.1 Statement regarding computation of ratio of earnings to fixed charges.
23.1 Consent of Arthur Andersen LLP, independent certified public
accountants.
23.2 Consent of KPMG LLP, independent certified public accountants.
23.3 Consent of Sidley & Austin (included in Exhibit 5.1).*
24.1 Power of Attorney (included on signature page)
25.1 Statement of Eligibility of Trustee on Form T-1.
</TABLE>
- --------
* To be filed by amendment or by a report on Form 8-K pursuant to Item 601 of
Regulation S-K under the Securities Act of 1933.
II-2
<PAGE>
Item 17. Undertakings.
(a) 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 this 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 this registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement.
Provided however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall 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 this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment
to this registration statement any of the securities being registered
which remain unsold at the termination of the offering.
(b) 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 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the registrant pursuant to the provisions described under Item
15 above, 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.
II-3
<PAGE>
(d) 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 in accordance with
the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
II- 4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois on July 7, 1999.
TRUE NORTH COMMUNICATIONS INC.
/s/ David A. Bell
By: _________________________________
David A. Bell
Chairman and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David A. Bell, Donald L. Seeley and Theodore J.
Theophilos, and each of them, his or her true and lawful attorney-in-fact with
full power of substitution and resubstitution, in any and all capacities, to
sign this Registration Statement or amendments (including post-effective
amendments) thereto and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto each of said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes and he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
following capacities on the 7th day of July, 1999.
Signature Title
/s/ David A. Bell Chairman and Chief Executive Officer
_____________________________________ (principal executive officer)and
David A. Bell Director
/s/ Donald L. Seeley Vice Chairman, Chief Financial Officer
_____________________________________ (principal financial officer) and
Donald L. Seeley Director
/s/ Kevin J. Smith Senior Vice President, Chief Accounting
_____________________________________ Officer (principal accounting officer)
Kevin J. Smith
/s/ Ronald W. Bess Director
_____________________________________
Ronald W. Bess
/s/ Joseph A. Califano, Jr. Director
_____________________________________
Joseph A. Califano, Jr.
S-1
<PAGE>
Signature Title
/s/ Donald M. Elliman, Jr. Director
_____________________________________
Donald M. Elliman, Jr.
/s/ H. John Greeniaus Director
_____________________________________
H. John Greeniaus
/s/ Leo-Arthur Kelmenson Director
_____________________________________
Leo-Arthur Kelmenson
/s/ Michael E. Murphy Director
_____________________________________
Michael E. Murphy
/s/ Charles D. Peebler, Jr. Director
_____________________________________
Charles D. Peebler, Jr.
/s/ J. Brendan Ryan Director
_____________________________________
J. Brendan Ryan
/s/ Marilyn R. Seymann Director
_____________________________________
Marilyn R. Seymann
/s/ Stephen T. Vehslage Director
_____________________________________
Stephen T. Vehslage
S-2
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
------- ----------------------
<C> <S>
4.5 Registrant's Bylaws, as amended through May 26, 1999.
4.9 Form of Indenture.
12.1 Statement regarding computation of ratio of earnings to fixed charges.
23.1 Consent of Arthur Andersen LLP, independent certified public
accountants.
23.2 Consent of KPMG LLP, independent certified public accountants.
25.1 Statement of Eligibility of Trustee on Form T-1.
</TABLE>
<PAGE>
BYLAWS
OF
TRUE NORTH COMMUNICATIONS INC.
as amended
through 5/26/99
ARTICLE I
---------
Stockholders' Meetings
----------------------
Section 1. Annual Meeting. (a) The annual meeting of stockholders for the
election of directors and the transaction of such other business as may properly
come before it shall be held at such hour as shall be determined by the Board of
Directors on the second Wednesday in May of each year, or at such other time as
shall be determined by the Board of Directors. If the day fixed for the annual
meeting is a legal holiday, such meeting shall be held on the next succeeding
business day. The annual meeting shall be held at such place as shall be
determined by the Board of Directors.
(b) Only such business shall be conducted at an annual meeting of
stockholders as shall have been properly brought before the meeting. For
business to be properly brought before the meeting, it must be: (i) authorized
by the Board of Directors and specified in the notice, or a supplemental notice,
of the meeting, (ii) otherwise brought before the meeting by or at the direction
of the Board of Directors or the chairman of the meeting, or (iii) otherwise
properly brought before the meeting by a stockholder. For business to be
properly brought before an annual meeting by a stockholder, the stockholder must
have given written notice thereof to the Secretary, delivered or mailed to and
received at the principal executive offices of the corporation (a) not less than
60 days nor more than 90 days prior to the meeting, or (b) if less than 70 days'
notice of the meeting or prior public disclosure of the date of the meeting is
given or made to stockholders, not later than the close of business on the tenth
day following the day on which the notice of the meeting was mailed or, if
earlier, the day on which such public disclosure was made. A stockholder's
notice to the Secretary shall set forth as to each item of business the
stockholder proposes to bring before the meeting (1) a brief description of such
item and the reasons for conducting such business at the meeting, (2) the name
and address, as they appear on the corporation's records, of the stockholder
proposing such business, (3) the class and number of shares of stock of the
corporation which are beneficially owned by the stockholder (for purposes of the
regulations under Sections 13 and 14 of the Securities Exchange Act of 1934, as
amended), and (4) any material interest of the stockholder in such business. No
business shall be conducted at any annual meeting except in accordance with the
procedures set forth in this paragraph (b). The chairman of the meeting at which
any business is proposed by a stockholder shall, if the facts warrant, determine
and declare to the meeting that such business was not properly brought before
the meeting in accordance with the provisions of this paragraph (b), and, in
such event, the business not properly before the meeting shall not be
transacted.
Section 2. Special Meetings. Special meetings of stockholders may be called
by the Board of Directors, the Chief Executive Officer or the President and may
be held at such places, within or without the State of Delaware, as may be
specified in the call of any meeting.
<PAGE>
Section 3. Notice of Meetings. Written notice of every meeting of
stockholders stating the place, date, hour and purposes thereof, shall, except
when otherwise required by law, be mailed at least ten but not more than fifty
days prior to the meeting to each stockholder of record entitled to vote
thereat. Any meeting at which a quorum of stockholders is present, in person or
by proxy, may adjourn from time to time until its business is completed. At the
adjourned meeting the corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 4. Quorum. The holders of a majority of the shares of stock issued
and outstanding and entitled to vote, present in person or by proxy, shall,
except as otherwise provided by law, constitute a quorum for the transaction of
business at all meetings of stockholders. If at any meeting a quorum is not
present, the chairman of the meeting or the holders of the majority of the
shares of stock present or represented may adjourn the meeting from time to
time. At the adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting. The stockholders
present or represented at a duly called or held meeting at which a quorum is
present may continue to transact business until adjournment notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
Section 5. Voting. Each holder of stock entitled to vote at a stockholders'
meeting shall, as to all matters in respect of which such stock has voting
rights, be entitled to one vote in person or by written proxy for each share of
stock owned of record by him, but no proxy shall be voted or acted upon after
three years from its date unless the proxy provides for a longer period. No vote
upon any matter, except the election of directors, need be by ballot unless
demanded by the holders of at least ten percent of the shares represented and
entitled to vote at the meeting. All elections and questions shall be decided by
a plurality of the votes cast, except as otherwise required by the laws of
Delaware.
Section 6. List of Stockholders. At least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder, and the number of shares registered in the name of each
stockholder, shall be prepared by the Secretary. Such list shall be open to the
examination of any stockholder for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. The original or duplicate stock
ledger shall be the only evidence as to who are stockholders entitled to examine
the stock ledger, the list required by this section or the books of the
corporation, or to vote in person or by proxy at any meeting of stockholders.
-2-
<PAGE>
ARTICLE II
----------
Directors
---------
Section 1. Number, Election and Term of Office. A Board of Directors
consisting of not less than 9 nor more than 21 directors (as shall from time to
time be determined by the Board of Directors) shall be elected at every annual
stockholders' meeting. Each director elected shall hold office until his
successor is elected and qualified or until his earlier resignation or removal.
Directors need not be stockholders.
Nominations for the election of directors may be made by the Board of
Directors or a committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of directors at the particular
meeting at which the nomination is to occur. However, any stockholder entitled
to vote at such meeting may nominate one or more persons for election as
directors only in person or by proxy at such meeting and only if written notice
of such stockholder's intent to make such nomination or nominations has been
delivered personally to or otherwise received by the Secretary of the
corporation at least 60 days but no more than 90 days prior to the meeting of
stockholders; provided, that in the event that less than 70 days' notice or
prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of the meeting was mailed or such public disclosure was
made, whichever first occurs. Each such notice shall contain a representation
that: (i) the stockholder is, and will be on the record date, a beneficial owner
or a holder of record of stock of the corporation entitled to vote at such
meeting; (ii) the stockholder has, and will have on the record date, full voting
power with respect to such shares; and (iii) the stockholder intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice. Additionally, each such notice shall set forth: (a) the name and
address of the stockholder who intends to make the nomination and of the person
or persons to be nominated; (b) a description of all arrangements or
understandings between the stockholder and each proposed nominee and any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (c) the number and
kinds of securities of the corporation held beneficially or of record by each
proposed nominee; (d) such other information regarding each proposed nominee as
would be required to be included in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission for the initial election
of such proposed nominee for director; and (e) the consent of each proposed
nominee to serve as a director if so elected. The presiding officer of the
meeting may refuse to acknowledge the nomination of any person if any of the
information supplied is false or misleading or if any of the foregoing
requirements are not satisfied.
Section 2. Vacancies. Any vacancy occurring in the Board and any
directorship to be filled by reason of an increase in the authorized number of
directors may be filled by a majority of the directors then in office, although
less than a quorum. A director elected to fill a vacancy shall hold office until
the next annual election of directors. When one or more directors shall resign
from the Board, effective at a future date, a majority of the directors then in
office, including those who have so resigned, shall have power to fill such
vacancy or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided in this section in the filling of other vacancies.
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Section 3. Place of Meetings. Directors' meetings may be held at such
places, within or without the State of Delaware, as the Board may from time to
time determine or as may be specified in the call of any meetings.
Section 4. Regular Meetings. A regular annual meeting of the Board shall be
held without call or notice immediately after and at the same general place as
the annual meeting of the stockholders, for the purpose of organizing the Board,
electing officers and transacting any other business that may properly come
before the meeting. Additional regular meetings of the Board may be held without
call or notice at such place and at such time as shall be fixed by resolution of
the Board.
Section 5. Special Meetings. Special meetings of the Board may be called by
the Chief Executive Officer, the President, or by a majority of the directors
then in office. Notice of special meetings shall either be mailed by the
Secretary to each director at least three days before the meeting or shall be
given personally or via facsimile to each director at least one day before the
meeting. Such notice shall set forth the time and place of such meeting but need
not, unless otherwise required by law, state the purposes of the meeting. A
majority of the directors present at any meeting may adjourn the meeting from
time to time without further notice other than announcement at the meeting.
Section 6. Quorum. One third of the total number of directors shall
constitute a quorum for the transaction of business at any meeting of the Board.
If at any meeting a quorum is not present, a majority of the directors present
may adjourn the meeting from time to time without notice other than announcement
at the meeting until a quorum is present.
Section 7. Committees of the Board. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees. Each such committee shall consist of two or more of the directors of
the corporation and, to the extent provided in the resolution designating such
committee, shall have and may exercise the powers of the Board of Directors in
the management of the business and affairs of the corporation, and may authorize
the seal of the corporation to be affixed to all papers which may require it.
The Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of any member of such
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board to act at the meeting in the
place of such absent or disqualified member.
Section 8. Action Without Meeting. Any action required or permitted to be
taken at any meeting of the Board of Directors, or of any committee thereof, may
be taken without a meeting if all members of the Board, or of such committee, as
the case may be, consent thereto in writing, and such written consent is filed
with the minutes of the proceedings of the Board or of such committee.
Section 9. Compensation. Directors and members of committees may receive
such compensation, if any, for their services, and such reimbursement for
expenses, as may be fixed or
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determined by the Board of Directors, provided that nothing herein contained
shall be construed to preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
ARTICLE III
-----------
Officers and Employees
----------------------
Section 1. Number, Qualification, Election and Term of Office. (a) The
Board of Directors shall elect the officers of the corporation which may include
a Chief Executive Officer, a President, a Chief Financial Officer, a Chief
Accounting Officer, a Controller, one or more Vice Presidents (one or more of
whom may be designated as Executive Vice Presidents or as Senior Vice Presidents
or by other designations), a Secretary, a Treasurer, and such other officers or
assistant officers as the Board of Directors may from time to time deem
advisable. No officer need be a director except the Chief Executive Officer. The
same person may hold two or more offices, except that if one person shall hold
the offices of President and Secretary, he shall not hold any other office.
(b) Each officer of the corporation shall be elected by the Board of
Directors and shall hold office until the annual meeting of the Board of
Directors next succeeding his election and until his successor shall have been
elected and qualified, or until his resignation or removal.
Section 2. Appointments. In addition to the elected officers provided
above, who shall be corporate officers, the Chief Executive Officer may appoint
one or more Assistant Secretaries, Assistant Treasurers and Assistant
Controllers.
Section 3. Removal and Vacancies. All officers shall serve at the pleasure
of the Board. Any officer may be removed by the Board at any time with or
without cause. A vacancy in any office shall be filled by the Board of
Directors.
Section 4. Bonding. The Board may, in its discretion, require any officer
to give the corporation a bond in a sum and with one or more sureties
satisfactory to the Board for the faithful performance of his duties and for the
restoration to the corporation, in the case of death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
corporation.
Section 5. Chairman of the Board and Vice Chairmen. The Board of Directors
may annually elect from its members a Chairman of the Board and one or more Vice
Chairman. The Chairman of the Board, when and if elected by the Board, shall
preside at meetings of the Board. The Vice Chairmen of the Board, when and if
elected by the Board, shall assist the Chairman of the Board and have such other
duties as may be assigned by the Board or the Chairman of the Board. Any vacancy
in the position of Chairman of the Board or Vice Chairman may be filled at such
time and in such manner as the Board of Directors shall determine.
Section 6. Chief Executive Officer. The Chief Executive Officer shall
preside at all meetings of stockholders and shall be the chief executive officer
of the corporation. He may sign, execute and deliver in the name of the
corporation, powers of attorney, contracts, bonds and other obligations,
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and shall have such further duties as are prescribed by law or as shall from
time to time be designated by the Board.
Section 7. President. The President shall have general and active
supervision over the property, business and affairs of the corporation, subject
to the authority of the Chief Executive Officer. He shall preside, in the
absence of the Chief Executive Officer, at all meetings of stockholders. He may
sign, execute and deliver in the name of the corporation powers of attorney,
contracts, bonds and other obligations, and shall have such further duties as
shall from time to time be designated by the Board.
Section 8. Chief Financial Officer. The Chief Financial Officer shall be
the principal financial officer of the corporation. He shall have such duties as
shall from time to time be designated by the Board.
Section 9. Vice Presidents. The elected Vice Presidents, which may be
designated by different classes, shall have such duties as shall from time to
time be designated by the Board.
Section 10. Secretary. The Secretary shall be the keeper of the corporate
seal and records (except those kept by the Treasurer), and shall give notice of,
attend, and record minutes of meetings of stockholders and directors. The
Secretary or any Assistant Secretary shall have authority to affix the corporate
seal to any instrument requiring it, and when so affixed, the corporate seal may
be attested by the signature of the Secretary or any Assistant Secretary.
Section 11. Treasurer. The Treasurer shall be responsible for (i) the
custody and safekeeping of all of the funds of the corporation, (ii) the receipt
and deposit of all moneys paid to the corporation, (iii) where necessary or
appropriate, the endorsement for collection on behalf of the corporation of all
checks, drafts, notes, and other obligations payable to the corporation, (iv)
the disbursement of funds of the corporation under such rules as the Board may
from time to time adopt, (v) keeping full and accurate records of all receipts
and disbursements, and (vi) the performance of such further duties as are
incident to his office or as may from time to time be designated by the Board.
Section 12. The Chief Accounting Officer. The Chief Accounting Officer
shall have general charge, control, and supervision over the accounting affairs
of the corporation and the implementation of accounting policies and procedures.
The Chief Accounting Officer shall perform such other duties as the Board of
Directors may prescribe or the Chief Financial Officer shall delegate.
Section 13. Controller. The Controller shall have responsibility for the
preparation and maintenance of the financial records of the corporation; shall
collect and consolidate the financial results of its subsidiaries and other
operating units, and supervise the preparation of all financial statements and
reports on the operation and condition of the business. The Controller shall
perform such other duties as the Board of Directors may prescribe or the Chief
Financial Officer shall delegate.
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ARTICLE IV
----------
Stock Certificates and Transfer Books
-------------------------------------
Section 1. Certificates. Every stockholder shall be entitled to have a
certificate in such form as the Board shall from time to time approve, signed
by, or in the name of the corporation by the Chairman of the Board, the Chief
Executive Officer, the President or any elected Vice-President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
certifying the number of shares owned by him. During the time in which the
corporation is authorized to issue more than one class of stock or more than one
series of any class, there shall be set forth on the face or back of each
certificate issued a statement that the corporation will furnish without charge
to each stockholder who so requests, the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof of the corporation and the qualifications, limitations or restrictions
of such preferences and/or rights.
Section 2. Facsimile Signatures. Where a certificate is countersigned (1)
by a transfer agent other than the corporation or its employee, or, (2) by a
registrar other than the corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent, or registrar at the date
of issue.
Section 3. Record Ownership. A record of the name and address of the
holder of each certificate, the number of shares represented thereby, and the
date of issue thereof shall be made on the corporation's books. The corporation
shall be entitled to treat the holder of record of any share or shares of stock
as the holder in fact thereof, and accordingly shall not be bound to recognize
any equitable or other claim to or interest in any share on the part of any
other person whether or not it shall have express or other notice thereof,
except as required by the laws of Delaware.
Section 4. Lost Certificates. Any person claiming a stock certificate in
lieu of one lost, stolen, mutilated or destroyed shall give the corporation an
affidavit as to his ownership of the certificate and of the facts which go to
prove its loss, theft, mutilation or destruction. He shall also, if required by
the Board, give the corporation a bond, in such form as may be approved by the
Board, sufficient to indemnify the corporation against any claim that may be
made against it on account of the alleged loss or theft of the certificate or
the issuance of a new certificate.
Section 5. Transfer Agent or Registrar. The corporation shall maintain one
or more transfer offices or agencies, each in charge of a transfer agent
designated by the Board, where the shares of stock of the corporation shall be
transferable. The corporation shall also maintain one or more registry offices,
each in charge of a registrar designated by the Board, wherein such shares of
stock shall be registered.
Section 6. Transfers of Stock. Transfer of shares shall, except as
provided in Section 4 of this ARTICLE IV, be made on the books of the
corporation only by direction of the person named in the certificate or his
attorney, lawfully constituted in writing, and only upon the surrender for
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cancellation of the certificate therefor, duly endorsed or accompanied by a
written assignment of the shares evidenced thereby.
Section 7. Fixing Date for Determination of Stockholders of Record. (a) In
order that the corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board may fix, in advance, a record date, which shall not be more than sixty
nor less than ten days before the date of such meeting, nor more than sixty days
prior to any other action.
(b) If no record date is fixed:
(1) The record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the
day on which the meeting is held.
(2) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board
adopts the resolution relating thereto.
(c) A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
ARTICLE V
---------
General Provisions
------------------
Section 1. Offices. The registered office of the corporation in Delaware
shall be in the City of Wilmington, County of New Castle. The corporation may
have such other offices as the Board may from time to time determine. The books
of the corporation may be kept outside the State of Delaware.
Section 2. Seal. The corporation's seal shall be a circular in form with
the words "TRUE NORTH COMMUNICATIONS INC. - DELAWARE" around the periphery and
the figures and words "CORPORATE SEAL" within.
Section 3. Fiscal Year. The fiscal year of the corporation shall begin on
January 1 and end on December 31.
Section 4. Inspection of Books. Subject to laws of the State of Delaware,
the directors shall determine from time to time whether, and, if allowed, when
and under what conditions and regulations the accounts and books of the
corporation (except such as may by statute be specifically
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open to inspection) or any of them, shall be open to the inspection of the
stockholders, and the stockholders' rights in this respect are and shall be
restricted and limited accordingly.
Section 5. Reliance on Records. Each director and officer shall in the
performance of his duties be fully protected in relying in good faith upon the
books of account or reports made to the corporation by any of its officials, or
by an independent certified public accountant, or by an appraiser selected with
reasonable care by the Board, or in relying in good faith upon other records of
the corporation.
Section 6. Annual Report. The Board shall publish and submit to the
stockholders annually a summary of the consolidated income of the corporation
and its consolidated subsidiaries for the previous fiscal year and a full or
condensed consolidated balance sheet of the corporation and its consolidated
subsidiaries at the end of the previous fiscal year.
Section 7. Voting of Stock. Unless otherwise ordered by the Board, the
Chief Executive Officer, the President or the Chief Financial Officer, and each
or any of them, shall have full power and authority, in the name and on behalf
of the corporation, to attend, act and vote at any meeting of stockholders of
any company in which the corporation may hold shares of stock, and at any such
meeting shall possess and may exercise any and all rights and powers incident to
the ownership of such shares and which, as the holder thereof, the corporation
might possess and exercise if personally present, and may exercise such power
and authority through the execution of proxies or may delegate such power and
authority to any other officer, agent or employee of the corporation.
Section 8. Waiver of Notice. Whenever any notice is required to be given,
a waiver thereof in writing, signed by the person or persons entitled to the
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
Section 9. Indemnification. (a) The corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which the person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that such
person's conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the
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corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) To the extent that a present or former director, officer, employee or
agent of the corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections (a) and (b)
of this Article V, Section 9, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this Article V,
Section 9 (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
present or former director, officer, employee or agent is proper in the
circumstances because the person has met the applicable standard of conduct set
forth in subsections (a) and (b). Such determination shall be made (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the stockholders.
(e) Expenses (including attorney's fees) incurred by an officer or
director in defending a civil, criminal, administrative or investigative action,
suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
the corporation as authorized in this Article V, Section 9. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by or granted
pursuant to this Article V, Section 9 shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding such office.
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(g) The corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under the provisions of this
Article V, Section 9.
(h) For purposes of this Article V, Section 9, references to "the
corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article V, Section
9 with respect to the resulting or surviving corporation as such person would
have with respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this Article V, Section 9, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this Article V, Section 9.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article V, Section 9 shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Section 10. Amendments to Bylaws. These Bylaws may be altered or repealed
by the stockholders or by the Board of Directors.
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Exhibit 4.9
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TRUE NORTH COMMUNICATIONS INC.
as Issuer
TO
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
--------------------
Indenture
Senior Debt Securities
Dated as of ____________, 1999
--------------------
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<PAGE>
TABLE OF CONTENTS
<TABLE>
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RECITALS OF THE COMPANY.............................................. 1
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions........................................ 1
Act........................................................ 2
Affiliate.................................................. 2
Attributable Debt.......................................... 2
Authenticating Agent....................................... 2
Bankruptcy Law............................................. 2
Board of Directors......................................... 2
Board Resolution........................................... 3
Business Day............................................... 3
Capital Stock.............................................. 3
Commission................................................. 3
Company.................................................... 3
Company Request or Company Order........................... 3
Consolidated Net Worth..................................... 3
Corporate Trust Office..................................... 3
covenant defeasance........................................ 3
currency unit or currency units............................ 3
Custodian.................................................. 4
Default.................................................... 4
Defaulted Interest......................................... 4
defeasance................................................. 4
Depositary................................................. 4
dollars and $.............................................. 4
Event of Default........................................... 4
Exchange Act............................................... 4
Funded Debt................................................ 4
GAAP....................................................... 4
Holder or Securityholder................................... 4
Indebtedness............................................... 5
Indenture.................................................. 5
interest................................................... 5
Interest Payment Date...................................... 5
Judgment Currency.......................................... 5
lien and liens............................................. 5
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Maturity...................................................... 5
New York Banking Day.......................................... 5
Nonrecourse Obligation ....................................... 5
NYSE.......................................................... 5
Officer....................................................... 5
Officers' Certificate......................................... 6
Opinion of Counsel............................................ 6
Original Issue Discount Security.............................. 6
Outstanding................................................... 6
Paying Agent.................................................. 7
Permitted Liens............................................... 7
Person........................................................ 8
Place of Payment.............................................. 8
Predecessor Security.......................................... 8
Redemption Date............................................... 9
Redemption Price.............................................. 9
Registered Security........................................... 9
Regular Record Date........................................... 9
Required Currency............................................. 9
Responsible Officer........................................... 9
Restricted Subsidiary......................................... 9
Sale and Lease-Back Transaction............................... 9
Securities.................................................... 10
Security Register and Security Registrar...................... 10
Special Record Date........................................... 10
Stated Maturity............................................... 10
Subsidiary ................................................... 10
Trustee....................................................... 10
Trust Indenture Act........................................... 10
U.S. Government Obligations................................... 11
Vice President................................................ 11
SECTION 102. Compliance Certificates and Opinions................ 11
SECTION 103. Form of Documents Delivered to Trustee.............. 12
SECTION 104. Acts of Holders..................................... 12
SECTION 105. Notices, Etc., to Trustee and Company............... 14
SECTION 106. Notice to Holders; Waiver........................... 14
SECTION 107. Conflict with Trust Indenture Act................... 15
SECTION 108. Effect of Headings and Table of Contents............ 15
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SECTION 109. Successors and Assigns............................... 15
SECTION 110. Separability Clause.................................. 15
SECTION 111. Benefits of Indenture................................ 15
SECTION 112. Governing Law........................................ 15
SECTION 113. Legal Holidays....................................... 16
SECTION 114. No Recourse Against Others........................... 16
SECTION 115. Judgment Currency.................................... 16
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally...................................... 17
SECTION 202. Form of Face of Security............................. 17
SECTION 203. Form of Reverse of Security.......................... 20
SECTION 204. Form of Trustee's Certificate of Authentication...... 24
SECTION 205. Securities in Global Form............................ 25
SECTION 206. Form of Legend for the Securities in Global Form..... 25
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series................. 26
SECTION 302. Denominations........................................ 29
SECTION 303. Execution, Authentication, Delivery and Dating....... 29
SECTION 304. Temporary Securities................................. 31
SECTION 305. Registration, Registration of Transfer and Exchange.. 32
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..... 34
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SECTION 307. Payment of Interest; Interest Rights Preserved....................................... 35
SECTION 308. Persons Deemed Owners................................................................ 36
SECTION 309. Cancellation......................................................................... 36
SECTION 310. Computation of Interest.............................................................. 37
SECTION 311. CUSIP Number......................................................................... 37
SECTION 312. Wire Transfers....................................................................... 37
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.............................................. 37
SECTION 402. Application of Trust Money........................................................... 38
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.................................................................... 39
SECTION 502. Acceleration of Maturity; Rescission and Annulment................................... 41
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee...................... 41
SECTION 504. Trustee May File Proofs of Claim..................................................... 42
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.......................... 43
SECTION 506. Application of Money Collected....................................................... 43
SECTION 507. Limitation on Suits.................................................................. 44
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest............ 44
SECTION 509. Restoration of Rights and Remedies................................................... 45
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C>
SECTION 510. Rights and Remedies Cumulative....................................................... 45
SECTION 511. Delay or Omission Not Waiver......................................................... 45
SECTION 512. Control by Holders................................................................... 45
SECTION 513. Waiver of Past Defaults.............................................................. 46
SECTION 514. Undertaking for Costs................................................................ 46
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities of the Trustee................................... 46
SECTION 602. Notice of Defaults................................................................... 47
SECTION 603. Certain Rights of Trustee............................................................ 47
SECTION 604. Not Responsible for Recitals or Issuance of Securities............................... 48
SECTION 605. May Hold Securities.................................................................. 49
SECTION 606. Money Held in Trust.................................................................. 49
SECTION 607. Compensation and Reimbursement....................................................... 49
SECTION 608. Disqualification; Conflicting Interests.............................................. 50
SECTION 609. Corporate Trustee Required; Eligibility.............................................. 50
SECTION 610. Resignation and Removal; Appointment of Successor.................................... 50
SECTION 611. Acceptance of Appointment by Successor............................................... 52
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.......................... 53
SECTION 613. Preferential Collection of Claims Against Company.................................... 53
SECTION 614. Appointment of Authenticating Agent.................................................. 53
SECTION 615. Compliance with Tax Laws............................................................. 55
</TABLE>
v
<PAGE>
<TABLE>
<S> <C>
ARTICLE SEVEN
Holders' Lists And Reports By Trustee And Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders............................ 55
SECTION 702. Preservation of Information; Communications to Holders............................... 55
SECTION 703. Reports by Trustee................................................................... 56
SECTION 704. Reports by Company................................................................... 57
ARTICLE EIGHT
Consolidation, Merger, Lease, Sale or Transfer
SECTION 801. When Company May Merge, Etc.......................................................... 58
SECTION 802. Opinion of Counsel................................................................... 58
SECTION 803. Successor Corporation Substituted.................................................... 58
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders................................... 59
SECTION 902. Supplemental Indentures with Consent of Holders...................................... 60
SECTION 903. Execution of Supplemental Indentures................................................. 61
SECTION 904. Effect of Supplemental Indentures.................................................... 61
SECTION 905. Conformity with Trust Indenture Act.................................................. 61
SECTION 906. Reference in Securities to Supplemental Indentures................................... 62
ARTICLE TEN
Covenants
SECTION 1001. Payments of Securities............................................................... 62
SECTION 1002. Maintenance of Office or Agency...................................................... 62
</TABLE>
vi
<PAGE>
<TABLE>
<S> <C>
SECTION 1003. Corporate Existence.................................................................. 62
SECTION 1004. Payment of Taxes and Other Claims.................................................... 63
SECTION 1005. Maintenance of Properties............................................................ 63
SECTION 1006. Compliance Certificates.............................................................. 63
SECTION 1007. Commission Reports................................................................... 64
SECTION 1008. Waiver of Stay, Extension or Usury Laws.............................................. 65
SECTION 1009. Money for Securities Payments to Be Held in Trust.................................... 65
SECTION 1010. Limitations on Liens................................................................. 66
SECTION 1011. Limitations on Sale and Lease-Back Transactions...................................... 67
SECTION 1012. Restrictions on Debt of Restricted Subsidiaries...................................... 67
SECTION 1013. Waiver of Certain Covenants.......................................................... 68
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article............................................................. 68
SECTION 1102. Election to Redeem; Notice to Trustee................................................ 69
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.................................... 69
SECTION 1104. Notice of Redemption................................................................. 69
SECTION 1105. Deposit of Redemption Price.......................................................... 70
SECTION 1106. Securities Payable on Redemption Date................................................ 70
SECTION 1107. Securities Redeemed in Part.......................................................... 71
</TABLE>
vii
<PAGE>
<TABLE>
<S> <C>
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article................................................................. 71
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.................................... 71
SECTION 1203. Redemption of Securities for Sinking Fund................................................ 72
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Applicability of Article; Company's Option to Effect Defeasance or Covenant Defeasance... 72
SECTION 1302. Defeasance and Discharge................................................................. 72
SECTION 1303. Covenant Defeasance...................................................................... 73
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.......................................... 73
SECTION 1305. Deposited Money and Government Obligations To Be Held In Trust........................... 75
SECTION 1306. Reinstatement............................................................................ 75
ARTICLE FOURTEEN
Miscellaneous
SECTION 1401. Miscellaneous............................................................................ 76
</TABLE>
viii
<PAGE>
TRUE NORTH COMMUNICATIONS INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of ______________, 1999
<TABLE>
<CAPTION>
Trust Indenture
Indenture Section
Act Section
<S> <C>
(S) 310(a)(1)................................................................... 609
(a)(2).......................................................................... 609
(a)(3).......................................................................... Not Applicable
(a)(4).......................................................................... Not Applicable
(b)............................................................................. 608,610
(S) 311(a)...................................................................... 613
(b)............................................................................. 613
(b)(2).......................................................................... 703(a), 703(b)
(S) 312(a)...................................................................... 701, 702(a)
(b)............................................................................. 702(b)
(c)............................................................................. 702(c)
(S) 313(a)...................................................................... 703(a)
(b)............................................................................. 703(a)
(c)............................................................................. 703(a), 703(b)
(d)............................................................................. 703(b)
(S) 314(a)...................................................................... 704, 1006, 1007
(b)............................................................................. Not Applicable
(c)(1).......................................................................... 102
(c)(2).......................................................................... 102
(c)(3).......................................................................... Not Applicable
(d)............................................................................. Not Applicable
(e)............................................................................. 102
(S) 315(a)...................................................................... 601(a)
(b)............................................................................. 602, 703(a)
(c)............................................................................. 601(b)
(d)............................................................................. 601(c)
(d)(1).......................................................................... 601(a), 601(c)
(d)(2).......................................................................... 601(c)
(d)(3).......................................................................... 601(c)
(e)............................................................................. 514
(S) 316(a)(1)(A)................................................................ 512
(a)(1)(B)....................................................................... 502, 513
(a)(2).......................................................................... Not Applicable
(b)............................................................................. 508
(c)............................................................................. 104(e)
</TABLE>
ix
<PAGE>
<TABLE>
<S> <C>
(S) 317(a)(1)................................................................... 503
(a)(2).......................................................................... 504
(b)............................................................................. 1009
(S) 318(a)...................................................................... 107
</TABLE>
x
<PAGE>
INDENTURE, dated as of ________________, 1999, between True North
Communications Inc., a Delaware corporation (herein called the "Company"),
having its principal office at 101 East Erie Street, Chicago, Illinois 60611,
and The First National Bank of Chicago, a national banking association, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and ratable benefit of the Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, or defined by Commission rule and
not otherwise defined herein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(4) the word "including" (and with correlative meaning "include") means
including, without limiting the generality of, any description preceding such
term; and
(5) 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.
<PAGE>
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" when used in connection with a Sale and Lease-Back
Transaction means, at the time of determination, the lesser of (a) the fair
market value of the property involved (as determined in good faith by the
Company's Board of Directors), (b) the present value of the total net amount of
rent required to be paid under the lease during the remaining term thereof
(including any renewal term or period for which such lease has been extended)
computed by discounting from the respective due dates to such date such total
net amount of rent at the rate of interest set forth or implicit in the terms of
such lease or, if not practicable to determine such rate, the rate per annum
equal to the weighted average interest rate per annum borne by the Securities of
each series Outstanding pursuant to this Indenture compounded semi-annually, or
(c) if the obligation with respect to the Sale and Lease-Back Transaction
constitutes an obligation that is required to be classified and accounted for as
a capitalized lease for financial reporting purposes in accordance with
generally accepted accounting principles, the amount equal to the capitalized
amount of such obligation determined in accordance with generally accepted
accounting principles and included in the financial statements of the lessee.
For purposes of the foregoing definition, rent shall not include amounts
required to be paid by the lessee, whether or not designated as rent or
additional rent, on account of or contingent upon maintenance and repairs,
insurance, taxes, assessments, water rates and similar charges. In the case of
any lease that is terminable by the lessee upon the payment of a penalty, such
net amount shall be the lesser of the net amount determined assuming termination
upon the first date such lease may be terminated (in which case the net amount
shall also include the amount of the penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated) or the net amount determined assuming no such termination.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the board of directors of the Company;
provided, however, that when the context refers to actions or resolutions of the
Board of Directors, then the term "Board of Directors" shall also mean any duly
authorized committee of the Board of Directors of the Company or Officer
authorized to act with respect to any particular matter to exercise the power of
the Board of Directors of the Company.
2
<PAGE>
"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," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities of
any series, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law or regulation to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, warrants, rights, options or other equivalents
(however designated) of capital stock or any other equity interest of such
Person, including each class of common stock and preferred stock.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, 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 any two Officers, at least one of whom must
be its Chairman of the Board, its Chief Executive Officer, its President, its
Chief Financial Officer, its Chief Accounting Officer, its Treasurer, an
Assistant Treasurer or its Controller, and delivered to the Trustee.
"Consolidated Net Worth" means, at any date of determination, (a)
total assets of the Company and its Subsidiaries (including, without limitation,
all items that are treated as intangible in accordance with GAAP) at such date
less (b) total liabilities of the Company and its Subsidiaries (including,
without limitation, all deferred taxes) at such date, in each case determined on
a consolidated basis and in accordance with GAAP for such period; provided,
however, that the term "Consolidated Net Worth" shall not give effect to any
cumulative translation adjustments (whether positive or negative) at any such
date.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at One North State
Street, Ninth Floor, Chicago, Illinois 60602.
"covenant defeasance" has the meaning specified in Section 1303.
"currency unit" or "currency units" shall mean any composite currency.
3
<PAGE>
"Custodian" means any receiver, custodian, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301, which must be a clearing agency registered under the Exchange Act,
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" shall mean the Depositary with respect to the
Securities of that series.
"dollars" and "$" means lawful money of the United States of America.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations promulgated thereunder.
"Funded Debt" of any Person means Indebtedness, whether incurred,
assumed or guaranteed, maturing by its terms more than one year from the date of
creation thereof or which is extendable or renewable at the sole option of the
obligor in such manner that it may become payable more than one year from the
date of creation thereof; provided, however, that Funded Debt shall not include
obligations created pursuant to leases, or any Indebtedness or portion thereof
maturing by its terms within one year from the time of any computation of the
amount of outstanding Funded Debt unless such Indebtedness shall be extendable
or renewable at the sole option of the obligor in such manner that it may become
payable more than one year from such time, or any Indebtedness the payment or
redemption of which money in the necessary amount shall have been deposited in
trust either at or before the maturity or redemption date thereof.
"GAAP" means such accounting principles as are generally accepted in
the United States of America on the date or time of any computation required
hereunder.
"Holder" or "Securityholder" means a Person in whose name a Security
is registered in the Security Register.
4
<PAGE>
"Indebtedness" means, with respect to any Person (without duplication
for indebtedness or other obligations of such Person), any indebtedness of such
Person for money borrowed, whether incurred, assumed or guaranteed, and
including obligations under capitalized leases.
"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 hereunder.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 115.
"lien" and "liens" have the meaning specified in Section 1010.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"New York Banking Day" has the meaning specified in Section 115.
"Nonrecourse Obligation" means indebtedness or other obligations
substantially related to (a) the acquisition of assets not previously owned by
the Company or any Restricted Subsidiary or (b) the financing of a project
involving the development or expansion of properties of the Company or any
Restricted Subsidiary, as to which the obligee with respect to such indebtedness
or obligation has no recourse to the Company or any Restricted Subsidiary or any
assets of the Company or any Restricted Subsidiary other than the assets which
were acquired with the proceeds of such transaction or the project financed with
the proceeds of such transaction (and the proceeds thereof).
"NYSE" means the New York Stock Exchange, Inc.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Chief Accounting Officer, the Treasurer, any Assistant Treasurer, the
Controller, any Assistant Controller, the Secretary or any Assistant Secretary
of the Company.
5
<PAGE>
"Officers' Certificate" means a certificate signed by any two
Officers of the Company, at least one of whom must be its Chairman of the Board,
its Chief Executive Officer, its President, its Chief Financial Officer, its
Chief Accounting Officer, its Treasurer or its Controller, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be reasonably acceptable
to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled 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;
(iii) Securities which have been paid pursuant to Section 306 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; and
(iv) Securities which have been defeased pursuant to Section 1302;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (a) the principal amount of any Original Issue Discount Security
that shall be deemed to be Outstanding for such purposes shall be that portion
of the principal amount thereof that could be declared to be due and payable
upon the occurrence of an Event of Default and the continuation thereof pursuant
to the terms of such Original Issue Discount Security as of the date of such
determination, (b) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the dollar equivalent, determined
in the manner provided as contemplated by Section 301 on the date of original
issuance of such Security, of the principal amount (or, in the
6
<PAGE>
case of an Original Issue Discount Security, the dollar equivalent on the date
of original issuance of such Security of the amount determined as provided in
(a) above) of such Security, and (c) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded 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, premium, if any, or interest on any Securities on behalf of the
Company. The Company may act as Paying Agent with respect to any Securities
issued hereunder.
"Permitted Liens" means (a) liens (including liens arising from sale
and lease-back transactions) on property or assets acquired or held by the
Company or a Restricted Subsidiary incurred to secure the payment of all or any
part of the purchase price thereof or to secure any Indebtedness incurred prior
to, at the time of, or within 180 days after the acquisition for the purpose of
financing all or any part of the purchase price thereof, or liens (including
liens arising from sale and lease-back transactions) on property or assets
existing at the time of acquisition thereof by the Company or a Restricted
Subsidiary, other than liens created in contemplation of such acquisition that
were not incurred for the purpose of financing all or any part of the purchase
price thereof, provided, however, that the lien does not extend to or cover any
property or assets of any character other than the property or assets being
acquired, and provided, further, that any Indebtedness secured by such lien
shall otherwise be permitted under the terms of this Indenture; (b) liens on
property or assets of a Person, other than the Company or a Restricted
Subsidiary, existing at the time of acquisition thereof by the Company or a
Restricted Subsidiary, provided, that the liens were not created in
contemplation of such acquisition and do not extend to any property or assets of
any character other than the property or assets being acquired; (c) liens
affecting property or assets of a Person, other than the Company or a Restricted
Subsidiary, existing at the time it becomes a Restricted Subsidiary or at the
time it is merged into or consolidated with the Company or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of the property
or assets of a Person as an entirety or substantially as an entirety to the
Company or a Restricted Subsidiary, provided, however, that the liens were not
created in contemplation of the merger, consolidation or acquisition and do not
extend to any property or assets other than those of the Person so merged into
or consolidated with, or acquired by, the Company or a Restricted Subsidiary;
(d) liens securing Indebtedness owing by a Restricted Subsidiary of the Company
to the Company or to a Restricted Subsidiary of the Company; (e) liens existing
on the date of initial issuance of the Securities of such series; (f) liens in
favor of the United States of America or any State, territory or possession
thereof (or the District of Columbia), or any department, agency,
instrumentality or political subdivision of the United States of America or any
state, territory or possession thereof (or the District of Columbia), to secure
partial, progress, advance or other payments; (g) liens on any property to
secure all or part of the cost of alteration, repair or improvement thereon or
Indebtedness incurred to provide funds for such purpose in a principal amount
not exceeding the cost of such improvements
7
<PAGE>
or construction; (h) purchase money liens on personal property; (i) liens
(including judgment liens) arising in connection with legal proceedings, taxes,
fees, assessments or other governmental charges, so long as such proceedings,
taxes, fees, assessments or other governmental charges are being contested in
good faith and, in the case of judgment liens, execution thereon is stayed and
for which any reserves required in accordance with generally accepted accounting
principles have been established; (j) carriers', warehousemen's, mechanics',
landlords', materialmens', repairmens' or other similar liens arising in the
ordinary course of business which are not overdue for a period of more than 90
days or are being contested in good faith by appropriate proceedings diligently
pursued, provided, however, that (i) any proceedings commenced for the
enforcement of such liens shall have been stayed or suspended within 30 days of
the commencement thereof and (ii) provision for the payment of such liens has
been made on the books of the Company to the extent required by generally
accepted accounting principles; (k) easements, rights-of-way, zoning
restrictions and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount, and which do
not in any case materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the Company or
any Restricted Subsidiary; (l) pledges or deposits to secure obligations under
workers= compensation laws or other similar legislation (other than in respect
of employee benefit plans subject to the Employee Retirement Security Act of
1974, as amended) or to secure public or statutory obligations; (m) liens
securing the performance of, or payment in respect of, bids, tenders, government
contracts (other than for the repayment of borrowed money), surety and appeal
bonds and other obligations of a similar nature incurred in the ordinary course
of business; (n) any interest or title of a lessor or sublessor and any
restriction or encumbrance to which the interest or title of such lessor or
sublessor may be subject that is incurred in the ordinary course of business;
and (o) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any lien referred to in the
foregoing clauses (a) to (n), inclusive; provided, however, that any lien
permitted by any of the foregoing clauses (a) through (n) shall not extend to or
cover any property of the Company or such Restricted Subsidiary, as the case may
be, other than the property specified in such clauses and improvements thereto;
and provided, further, that any Indebtedness secured by such lien shall
otherwise be permitted under the terms of this Indenture.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"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 306 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.
8
<PAGE>
"Redemption Date," when used with respect to any Security of any
series 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 of any
series to be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Registered Security" means any Security issued hereunder and
registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Required Currency" has the meaning specified in Section 115.
"Responsible Officer," when used with respect to the Trustee, means
any officer of the Trustee assigned to administer corporate trust matters and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary, including its
Subsidiaries, which meets any of the following conditions: (a) the Company's and
its other Subsidiaries' investments in and advances to the Subsidiary exceed 10
percent of the total assets of the Company and its Subsidiaries consolidated as
of the end of the most recently completed fiscal year (for a proposed business
combination to be accounted for as a pooling of interests, this condition is
also met when the number of shares of common stock exchanged or to be exchanged
by the Company exceeds 10 percent of the total number of shares of its common
stock outstanding at the date the combination is initiated); or (b) the
Company's and its other Subsidiaries' proportionate share of the total assets
(after intercompany eliminations) of the Subsidiary exceeds 10 percent of the
total assets of the Company and its subsidiaries consolidated as of the end of
the most recently completed fiscal year; or (c) the Company's and its other
Subsidiaries' equity in the income from continuing operations before income
taxes, extraordinary items and cumulative effect of a change in accounting
principle of the Subsidiary exceeds 10 percent of such income of the Company and
its subsidiaries consolidated for the most recently completed fiscal year,
provided, however, that the term "Restricted Subsidiary" shall not include any
Subsidiary less than 60% of the 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, if the common stock of such
Subsidiary is traded on any national securities exchange or quoted on the Nasdaq
National Market or in the over-the-counter market.
"Sale and Lease-Back Transaction" means any arrangement with any
Person providing for the leasing by the Company or any Restricted Subsidiary of
any assets, which assets have been or are to be sold or transferred by the
Company or such Restricted Subsidiary to such Person, other than (a) any such
transaction involving a lease for a term of not more than three years, (b) any
such transaction between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries, or (c) any such transaction executed by the time of or
within one year after the latest
9
<PAGE>
of the acquisition, the completion of construction or improvement or the
commencement of commercial operation of such assets.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"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 the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, joint venture, limited or unlimited liability company, trust or
estate of which (or in which) more than 50% of:
(a) the issued and outstanding shares of capital stock having
ordinary voting power to elect directors of such corporation (irrespective
of whether at the time shares of capital stock of any other class or
classes of such corporation shall or might have voting power upon the
occurrence of any contingency);
(b) the interest in the capital or profits of such limited or
unlimited liability company, partnership or joint venture; or
(c) the beneficial interest in such trust or estate
is at the time, directly or indirectly, owned or controlled by such Person, by
such Person and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed;
provided, however, that in the event that such Act is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
10
<PAGE>
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed by the full
faith and credit of the United States of America which, in either case, are not
callable or redeemable at the option of the issuer thereof or otherwise subject
to prepayment, and shall also include a depository receipt issued by a New York
Clearing House 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 held by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"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".
SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) 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;
(c) 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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
11
<PAGE>
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
Officer or Officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Any certificate, statement or opinion of an Officer of the Company or
of counsel may be based, insofar as it relates to 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 the accounting matters
upon which his or her certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, 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 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
12
<PAGE>
(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 Registered Securities shall be proved by the
Security Register.
(d) 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.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so, provided that the Company may not set
a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the immediately following paragraph. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months
after the record date.
(f) The Trustee may set any day as a record date for the purpose of
determining the Holders of Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any direction referred to in
Section 512, (iv) any request to institute proceedings referred to in Section
507(2), or (v) any waiver of past defaults pursuant to Section 513, in each case
with respect to Securities of such series. If such a record date is fixed
pursuant to this paragraph, the relevant action may be taken or given before or
after such record date, but only the Holders of record at the close of business
on such record date shall be deemed to be holders of Securities of a series for
the purpose of determining whether Holders of the requisite proportion of
Outstanding Securities of such series have authorized or agreed or consented to
such action, and for that purpose the Outstanding Securities of such series
13
<PAGE>
shall be computed as of such record date; provided that no such action by
Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months
after the record date. Nothing in this paragraph shall be construed to prevent
the Trustee from setting a new record date for any action for which a record
date has been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date and the
proposed action by Holders to be given to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
106.
SECTION 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(a) 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, Attention: Corporate
Trust Administration, or
(b) 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 it at the address of its principal office specified in the
first paragraph of this Indenture, attention: Secretary, or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture or any Security provides for notice to Holders of
any event, such notice shall be deemed sufficiently given (unless otherwise
herein or in such Security 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. 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 or the
validity of the proceedings to which such notice relates.
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.
14
<PAGE>
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture or any Security 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.
SECTION 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included or deemed included in this
Indenture by any of the provisions of the Trust Indenture Act, such required
provision 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,
such provision of the Trust Indenture Act shall be deemed to apply to this
Indenture as so modified or shall be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed
in accordance with the laws (other than the choice of law provisions) of the
State of Illinois.
15
<PAGE>
SECTION 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date, Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities other than a provision in the Securities
of any series which specifically states that such provision shall apply in lieu
of this Section) payment of interest or principal (and premium, if any) need not
be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day or on such other day as may be set out in the Officers'
Certificate pursuant to Section 301 at such Place of Payment with the same force
and effect as if made on the Interest Payment Date, Redemption Date, sinking
fund payment date, Stated Maturity or Maturity, as the case may be, provided
that no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date, sinking fund payment date,
Stated Maturity or Maturity, as the case may be, if payment is made on such next
succeeding Business Day or other day set out in such Officers' Certificate.
SECTION 114. No Recourse Against Others.
--------------------------
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder, by accepting
a Security, waives and releases all such liability. Such waivers and releases
are part of the consideration for the issuance of the Securities.
SECTION 115. Judgment Currency.
-----------------
The Company agrees, to the fullest extent that it may effectively do
so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in respect of the principal of,
or premium or interest, if any, on the Securities of any series (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in the City of New
York the Required Currency with the Judgment Currency on the New York Banking
Day preceding that on which a final unappealable judgment is given and (b) its
obligations under this Indenture to make payments in the Required Currency (i)
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment (whether or not entered in accordance with subsection (a)), in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required Currency
so expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in the City of New York or a day on which banking institutions in
the City of New York are authorized or required by law or executive order to
close.
16
<PAGE>
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other 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
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 the rules of any
securities exchange or as may, consistently herewith, be determined by the
Officers executing such Securities, 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 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 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. Form of Face of Security.
------------------------
[If the Security is an Original Issue Discount Security, insert--FOR
PURPOSES OF SECTION 1272 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), THE AMOUNT OF ORIGINAL ISSUE DISCOUNT (AS DEFINED IN SECTION 1273(a)(1)
OF THE CODE AND TREASURY REGULATION SECTION 1.1273-1(a)) WITH RESPECT TO THIS
SECURITY IS ________, THE ISSUE DATE (AS DEFINED IN SECTION 1275(a)(2) OF THE
CODE AND TREASURY REGULATION SECTION 1.1273-2(a)(2)) OF THIS SECURITY IS
_______, THE ISSUE PRICE (AS DEFINED IN SECTION 1273(b) OF THE CODE AND TREASURY
REGULATION 1.1273-2(a)) OF THIS SECURITY IS __________, AND THE YIELD TO
MATURITY (AS DEFINED IN TREASURY REGULATION SECTION 1.1272-1(b)) OF THIS
SECURITY IS ________ -- or insert other legend required by the Internal Revenue
Code and the regulations thereunder.
TRUE NORTH COMMUNICATIONS INC.
.........................
No. _______ [$]________
True North Communications Inc., a corporation duly organized and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ______________________,
17
<PAGE>
or registered assigns, the principal sum of ____________________ [Dollars] on
__________________________ [the Security is to bear interest prior to Maturity,
--------------------------------------------------
insert--, and to pay interest thereon from _______________________ or from the
- ------
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on _______ and ________ in each year [if other than
semi-annual payments, insert frequency of payments and payment dates],
commencing _____________________, at [if the Security is to bear interest at a
fixed rate, insert -- the rate of _____% per annum], [if the Security is to bear
interest at a variable or floating rate and if determined with reference to an
index, refer to description of index below] until the principal hereof is paid
or made available for payment [if applicable insert--, and (to the extent that
--------------------
the payment of such interest shall be legally enforceable) at the rate of _____%
per annum on any overdue principal and premium and on any overdue installment of
interest]. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ____ or _____ (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture].
[If the Securities are floating or adjustable rate securities with
respect to which the principal of or any premium or interest may be determined
with reference to an index, insert the text of the floating or adjustable rate
provision.]
[If the Security is not to bear interest prior to Maturity, insert--
-----------------------------------------------------------------
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ___% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of ____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
-------------
insert--any such] interest on this Security will be made at the office or agency
- ------
of the Company maintained for that purpose in _________, in dollars [if
--
applicable, insert--; provided, however, that at the option of the Company
- ------------------
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register].
18
<PAGE>
[If applicable, insert -- So long as all of the Securities of this
series are represented by Securities in global form, the principal of, premium,
if any, and interest, if any, on this global Security shall be paid in same day
funds to the Depositary, or to such name or entity as is requested by an
authorized representative of the Depositary. If at any time the Securities of
this series are no longer represented by global Securities and are issued in
definitive certificated form, then the principal of, premium, if any, and
interest, if any, on each certificated Security at Maturity shall be paid in
same day funds to the Holder upon surrender of such certificated Security at the
Corporate Trust Office of the Trustee, or at such other place or places as may
be designated in or pursuant to the Indenture, provided that such certificated
Security is surrendered to the Trustee, or at such other place or places as may
be designated in or pursuant to the Indenture, provided that such certificated
Security is surrendered to the Trustee, acting as Paying Agent, in time for the
Paying Agent to make such payments in such funds in accordance with its normal
procedures. Payments of interest with respect to such certificated Securities
other than at Maturity may, at the option of the Company, be made by check
mailed to the address of the Person entitled thereto as it appears on the
Security Register on the relevant Regular or Special Record Date or by wire
transfer in same day funds to such account as may have been appropriately
designated to the Paying Agent by such Person in writing not later than such
relevant Regular or Special Record Date.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
TRUE NORTH COMMUNICATIONS INC.
By: _________________________________
Attest:
___________________________ [SEAL]
19
<PAGE>
SECTION 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ______________, 1999 (herein called the
"Indenture"), between the Company and _______________________________________,
as Trustee (herein called the "Trustee," which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [, limited in aggregate principal
amount to $______].
[If applicable, insert -- The Securities of this series are subject to
---------------------
redemption upon not less than 30 nor more than 45 days' notice by first class
mail, [if applicable, insert--(1) on _______ in any year commencing with the
---------------------
year _______ and ending with the year _____ through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [on or after __________, _________], as a whole or
in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount):
If redeemed [on or before _______________, ____%, and if redeemed]
during the 12-month period beginning _____________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
---------------------
through operation of the sinking fund or otherwise)] with accrued and unpaid
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject to
---------------------
redemption upon not less than 30 nor more than 45 days' notice by first class
mail, (1) on _____________ in any year commencing with the year ___________ and
ending with the year ______ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after ________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below:
20
<PAGE>
If redeemed during a 12-month period beginning _________________ of
the years indicated,
Redemption Price
For Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ------------ ---------------------
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued and unpaid interest to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to _______,
redeem any Securities of this series as contemplated by [clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than __% per annum.]
[The sinking fund for this series provides for the redemption on
_______ in each year beginning with the year _____ and ending with the year
_______ of [not less than] $____________ [("mandatory sinking fund") and not
more than $____________] aggregate principal amount of Securities of this
series.] [Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made--in
the inverse order in which they become due.]
[In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert --
------------------------------------------------------------------
If any Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
21
<PAGE>
[If the Security is an Original Issue Discount Security, insert -- If
--------------------------------------------------------------
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal--insert formula for determining the
----------------------------------
amount. Upon payment (i) of the amount of principal so declared due and payable
- ------
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
[This Security is subject to defeasance as described in the
Indenture.]
The Indenture may be modified by the Company and the Trustee without
consent of any Holder with respect to certain matters as described in the
Indenture. In addition, the Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall bind such Holder and all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, of authorized denominations and for the same Stated Maturity and
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of [$1,000] and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
22
<PAGE>
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.
Prior to due presentment of this 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 this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture imposes certain limitations on the ability of the
Company to, among other things, merge or consolidate with any other Person or
sell, assign, transfer or lease all or substantially all of its properties or
assets [If other covenants are applicable pursuant to the provisions of Section
------------------------------------------------------------------------
301, insert here]. All such covenants and limitations are subject to a number
- ------------------
of important qualifications and exceptions. The Company must report
periodically to the Trustee on compliance with the covenants in the Indenture.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under this
Security or the Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Holder, by accepting a Security,
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Security.
[If applicable, insert -- Pursuant to a recommendation promulgated by
---------------------
the Committee on Uniform Security Identification Procedures ("CUSIP"), the
Company has caused CUSIP numbers to be printed on the Securities of this series
as a convenience to the Holders of the Securities of this series. No
representation is made as to the correctness or accuracy of such numbers as
printed on the Securities of this series and reliance may be placed only on the
other identification numbers printed hereon.]
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
23
<PAGE>
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
_________________________________________________________________
(Insert assignee's social security or tax I.D. number)
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Dated: _______________ Your Signature: _________________________________
(Sign exactly as your name appears on the
other side of this Security)
Signature Guaranty: ____________________________________
[Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Transfer
Agent, which requirements will include membership or
participation in STAMP or such other "signature
guarantee program" as may be determined by the Transfer
Agent in addition to, or in substitution for, STAMP, all
in accordance with the Exchange Act.]
Social Security Number or
Taxpayer Identification Number: _______________________________________
SECTION 204. Form of Trustee's Certificate of Authentication .
-----------------------------------------------
The Trustee's certificate of authentication shall be in substantially
the following form:
Dated: ________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
24
<PAGE>
_______________________________
As Trustee
By ________________________________
Authorized Signatory
SECTION 205. Securities in Global Form.
-------------------------
If Securities of or within a series are issuable in whole or in part
in global form, then any such Security of such series may provide that it shall
represent the aggregate or a specified amount of the Outstanding Securities of
such series from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be reduced or increased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, or changes in the rights of Holders, of Outstanding
Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 303 or
Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last paragraph of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
premium, if any, and interest on any Security in permanent global form shall be
made to the Person or Persons specified therein.
SECTION 206. Form of Legend for the Securities in Global Form.
------------------------------------------------
Any Security in global form authenticated and delivered hereunder
shall bear a legend in substantially the following form, or in such other form
as may be necessary or appropriate to reflect the arrangements with or to comply
with the requirements of any Depositary:
"This Security is in global form within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. Unless and until it is exchanged in whole or in part
for Securities in certificated form in the limited circumstances
25
<PAGE>
described in the Indenture, this Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
ARTICLE THREE
The Securities
SECTION 301. 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 from time to time in one or more series.
Prior to the issuance of Securities of any series, there shall be established in
or pursuant to (i) a Board Resolution, (ii) action taken pursuant to a Board
Resolution and (subject to Section 303) set forth, or determined in the manner
provided, in an Officers' Certificate, or (iii) one or more indentures
supplemental hereto:
(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, or in lieu of, other Securities of the
series pursuant to Sections 304, 305, 306, 906 or 1107);
(3) the date or dates on which the principal of and premium, if any,
on the Securities of the series is payable or the method of determination
thereof;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which any such interest shall be payable and the Regular
Record Date, if any, for the interest payable on any Interest Payment Date;
(5) the place or places where the principal of, premium, if any, and
interest, if any, on Securities of the series shall be payable;
(6) the place or places where the Securities may be exchanged or
transferred;
26
<PAGE>
(7) the period or periods within which, the price or prices at which,
the currency or currencies (including currency unit or units) in which, and
the other terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, and, if other
than as provided in Section 1103, the manner in which the particular
Securities of such series (if less than all Securities of such series are
to be redeemed) are to be selected for redemption;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series in whole or in part pursuant to any sinking fund
or analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which, the
price or prices at which, and the other terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(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 U.S. dollars, the currency or currencies (including
currency unit or units) in which payments of principal of, premium, if any,
and interest on the Securities of the series shall or may by payable, or in
which the Securities of the series shall be denominated, and the particular
provisions applicable thereto;
(11) if the payments of principal of, premium, if any, or interest on
the Securities of the series are to be made, at the election of the Company
or a Holder, in a currency or currencies (including currency unit or units)
other than that in which such Securities are denominated or designated to
be payable, the currency or currencies (including currency unit or units)
in which such payments are to be made, the terms and conditions of such
payments and the manner in which the exchange rate with respect to such
payments shall be determined, and the particular provisions applicable
thereto;
(12) if the amount of payments of principal of, premium, if any, and
interest on the Securities of the series shall be determined with reference
to an index, formula or other method (which index, formula or method may be
based, without limitation, on a currency or currencies (including currency
unit or units) other than that in which the Securities of the series are
denominated or designated to be payable), the index, formula or other
method by which such amounts shall be determined;
(13) 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 502
or the method by which such portion shall be determined;
27
<PAGE>
(14) any deletions from, modifications of or additions to the Events
of Default or the covenants of the Company set forth herein with respect to
Securities of the series;
(15) if either or both of Section 1302 and Section 1303 shall be
inapplicable to the Securities of the series (provided that if no such
inapplicability shall be specified, then both Section 1302 and Section 1303
shall be applicable to the Securities of the series);
(16) if other than the Trustee, the identity of the Registrar and any
Paying Agent;
(17) the form and terms of any guarantee of the Securities of the
series and the terms and conditions, if any, upon which any guarantees
thereof shall be subordinated in right of payment to other indebtedness of
the Company or any guarantor;
(18) if and as applicable, the terms of any right to exchange for or
convert Securities of the series into other securities or property of the
Company;
(19) if the Securities of the series shall be issued in whole or in
part in global form, (i) the Depositary for such global Securities, (ii)
the form of any legend in addition to or in lieu of that in Section 206
which shall be borne by such global Security, (iii) whether beneficial
owners of interests in any Securities of the series in global form may
exchange such interests for certificated Securities of such series and of
like tenor of any authorized form and denomination, and (iv) if other than
as provided in Section 305, the circumstances under which any such exchange
may occur; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901, but which may modify or delete any provision of this Indenture
insofar as it applies to such series), including any terms which may be
required by or advisable under the laws of the United States of America or
regulations thereunder or advisable (as determined by the Company) in
connection with the marketing of Securities of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided (i) by a Board
Resolution, (ii) by action taken pursuant to a Board Resolution and (subject to
Section 303) set forth, or determined in the manner provided, in an Officers'
Certificate or (iii) in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
28
<PAGE>
If any of the terms of the Securities of any 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, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
SECTION 302. 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 301. 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.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its President, its Chief
Financial Officer, or its Chief Accounting Officer 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. The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered by
the Trustee.
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 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 shall authenticate and make such Securities available for
delivery. 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 201 and 301, 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 Sections 315(a)
through (d) of the Trust Indenture Act) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to a Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
29
<PAGE>
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, except to the extent enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and 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).
If such form or terms have been so established, 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, or in the written opinion of
counsel to the Trustee (which counsel may be an employee of the Trustee) such
authentication may not lawfully be made or would involve the Trustee in personal
liability.
Notwithstanding the provisions of Section 301 and of the immediately
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board Resolution
and the Officers' Certificate otherwise required pursuant to Section 301 or the
Company Order and Opinion of Counsel otherwise required pursuant to the second
preceding paragraph at or prior to the time of authentication of each Security
of such series if such documents are delivered at or prior to the authentication
upon original issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to Section 301 that the
Securities of a 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 this Section and the Company Order with respect to the
authentication and delivery of such series, authenticate and deliver one or more
Securities of such series in global form that (i) shall be in an aggregate
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Security or Securities in global form,
(ii) shall be registered in the name of the Depositary for such Security or
Securities in global form or its nominee, and (iii) shall be made available for
delivery by the Trustee to such Depositary or pursuant to such Depositary's
instruction.
Each Depositary designated pursuant to Section 301 for a Security in
global form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Exchange Act and
any other applicable statute or regulation. The Trustee shall have no
responsibility to determine if the Depositary is so registered. Each Depositary
shall enter into an agreement with the Trustee and the Company governing the
respective duties and rights of such Depositary, the Company and the Trustee
with regard to Securities issued in global form.
30
<PAGE>
Unless otherwise provided for in the form of Security, each Security
shall be dated the date of its authentication.
No Security shall be entitled to any benefits 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 or an Authenticating Agent 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.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
SECTION 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities of such series which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued 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.
In the case of Securities of any series, such temporary Securities may
be in global form, representing all or a portion of the Outstanding Securities
of such series.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions thereof), 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
in a Place of Payment 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 make
available for delivery in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor. 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.
31
<PAGE>
SECTION 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency to be maintained by the Company in
accordance with Section 1002 in a Place of Payment a register (the register
maintained in such office and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
registration of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and Stated Maturity.
At the option of the Holder, Securities of any series (except a
Security in global form) may be exchanged for other Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and Stated Maturity, 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 make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
Each Security issued in global form authenticated under this Indenture
shall be registered in the name of the Depositary designated for such series or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Security issued in global form shall
constitute a single Security for all purposes of this Indenture.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in certificated form in the
circumstances described below, a Security in global form representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or defaults in the performance of its duties as
Depositary or it at any time the Depositary for the Securities of such series
shall no longer be eligible under Section 303, the Company shall appoint a
successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's selection pursuant to Section 301(b)(18)
shall no longer be effective with respect to the Securities of such series and
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of
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certificated Securities of such series of like tenor, shall authenticate and
deliver Securities of such series of like tenor in certificated form, in
authorized denominations and in an aggregate principal amount equal to the
principal amount of the Security or Securities of such series of like tenor in
global form in exchange for such Security or Securities in global form.
The Company may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 301 with respect to a
series of Securities, the Depositary for such series may surrender a Security in
global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depositary. Thereupon, the Company shall execute, and the Trustee
shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new certified
Security or Securities of the same series of like tenor, of any authorized
denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Security in global form; and
(ii) to such Depositary a new Security in global form of like tenor in
a denomination equal to the difference, if any, between the principal
amount of the surrendered Security in global form and the aggregate
principal amount of certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be canceled by the
Trustee. Securities issued in exchange for a Security in global form pursuant
to this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
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.
Whenever any Securities are 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.
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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 and the Security Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (i) to issue,
register the transfer of or exchange Securities of such 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 under
Section 1103 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.
The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any series
of Securities by a Board Resolution or in one or more indentures supplemental
hereto.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered 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 its 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.
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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.
SECTION 307. 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 Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to
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the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause (2), such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. 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, premium, if any,
and (subject to Sections 305 and 307) 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.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interest of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depositary (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depositary and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the right of such Depositary (or its
nominee) as holder of such Security in global form.
SECTION 309. 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 canceled by it. 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 canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities shall be held by the Trustee and may
be destroyed (and, if
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so destroyed, certification of their destruction shall be delivered to the
Company, unless, by a Company Order, the Company shall direct that canceled
Securities be returned to it).
SECTION 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 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 311. CUSIP Number
------------
The Company in issuing Securities of any series may use a "CUSIP"
number, and if so, the Trustee may use the CUSIP number in notices of redemption
or exchange as a convenience to Holders of such series; provided, that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed on the notice or on the Securities of such
series, and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company will promptly notify the
Trustee of any change in the CUSIP number of any series of Securities.
SECTION 312. Wire Transfers.
--------------
Notwithstanding any other provision to the contrary in this Indenture,
the Company may make any payment of moneys required to be deposited with the
Trustee on account of principal of, or premium, if any, or interest on the
Securities (whether pursuant to optional or mandatory redemption payments,
interest payments or otherwise) by wire transfer of immediately available funds
to an account designated by the Trustee on or before the date and time such
moneys are to be paid to the Holders of the Securities in accordance with the
terms hereof.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities and
replacement of such Securities which may have been lost, stolen or mutilated as
herein expressly provided for or in the form of Security for such series), when
the Trustee, upon Company Request and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
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(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 306 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 1009) 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) 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
with the Trustee as trust funds in trust for the purpose an amount, in the
currency or currencies or currency unit or units in which the Securities of
such series are payable, sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal, premium, if any, and interest to the date
of such deposit (in the case of Securities which have become due and
payable) or 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 provided
for herein relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Company to any Authenticating Agent under Section 614 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 402 and the last
paragraph of Section 1009 shall survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1009, all
money deposited with the Trustee pursuant to Section 401 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
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<PAGE>
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 or received by the Trustee, but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE FIVE
Remedies
SECTION 501. 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 to be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) the Company defaults in the payment of interest on any Security of
that series when such interest becomes due and payable and the default continues
for a period of 30 days; or
(2) the Company defaults in the payment of the principal of, or
premium, if any, on any Security of that series when the same becomes due and
payable at Maturity or on redemption or otherwise; or
(3) the Company fails to deposit any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) the Company fails to observe or perform in any material respect
any of its other covenants, agreements or warranties in the Securities of that
series or this Indenture (other than a covenant, agreement or warranty a default
in whose performance or whose breach is elsewhere in this Section 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 the failure to
observe or perform continues for the period and after the notice specified in
the last paragraph of this Section; or
(5) an event of default, as defined in any mortgage, indenture, or
instrument under which there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company (including Securities of another
series) (other than the Securities of such series) (whether such Indebtedness
now exists or shall hereafter be created or incurred) shall occur and shall
consist of default in the payment of such Indebtedness at the maturity thereof
(after giving effect to any applicable grace period) or shall result in
Indebtedness becoming or being declared due and payable prior to the date on
which it would otherwise become due and payable, and such default in payment is
not cured or such acceleration shall not be rescinded or annulled within 10 days
after written notice to the Company from the Trustee or to the Company and to
the Trustee from the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series specifying such event
39
<PAGE>
of default and requiring the Company to cure such default in payment or cause
such acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; provided, however, that it shall not be an Event
of Default if the principal amount of Indebtedness which is not paid at maturity
or the maturity of which is accelerated is equal to or less than $10,000,000;
provided further that if, prior to a declaration of acceleration of the maturity
of the Securities of that series or the entry of judgment in favor of the
Trustee in a suit pursuant to Section 503, such default shall be remedied or
cured by the Company or waived by the holders of such Indebtedness, then the
Event of Default hereunder by reason thereof shall be deemed likewise to have
been thereupon remedied, cured or waived without further action upon the part of
either the Trustee or any of the Holders of the Securities of that series, and
provided further, that, subject to Sections 601 and 602, the Trustee shall not
be charged with knowledge of any such default unless written notice of such
default shall have been given to the Trustee by the Company, by a holder or an
agent of a holder of any such Indebtedness, by the trustee then acting under any
indenture or other instrument under which such default shall have occurred, or
by the Holders of at least five percent in aggregate principal amount of the
Securities of that series at the time outstanding; or
(6) the Company or any of its Restricted Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law (a) commences a voluntary case or
proceeding under any Bankruptcy Law with respect to itself, (B) consents to the
entry of a judgment, decree or order for relief against it in an involuntary
case or proceeding under any Bankruptcy Law, (C) consents to or acquiesces in
the institution of bankruptcy or insolvency proceedings against it, (D) applies
for, consents to or acquiesces in the appointment of or taking possession by a
Custodian of it or for all or substantially all of its property, (E) makes a
general assignment for the benefit of its creditors or (F) takes any corporate
action in furtherance of or to facilitate, conditionally or otherwise, any of
the foregoing; or
(7) (i) a court of competent jurisdiction enters a judgment, decree
or order for relief in an involuntary case or proceeding under any Bankruptcy
Law which shall (a) approve as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of the Company or any of its
Restricted Subsidiaries, (B) appoint a Custodian of the Company or any of its
Restricted Subsidiaries or for all or substantially all of its property or (C)
order the winding-up or liquidation of affairs of the Company or any of its
Restricted Subsidiaries, and such judgment, decree or order shall remain
unstayed and in effect for a period of 90 consecutive days; or (ii) any
bankruptcy or insolvency petition or application is filed, or any bankruptcy or
insolvency proceeding is commenced, against the Company or any of its Restricted
Subsidiaries and such petition, application or proceeding is not dismissed
within 90 days; or (iii) a warrant of attachment is issued against any material
portion of the property of the Company or any of its Restricted Subsidiaries
which is not released within 90 days of service; or
(8) any other Event of Default provided with respect to Securities of
that series.
A Default under clause (4) above is not an Event of Default until the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series notify the Company of the Default and the
Company does not cure the Default within 60 days after receipt of the notice.
The notice must specify the Default, demand that it be remedied and state that
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<PAGE>
the notice is a "Notice of Default." When a Default under clause (4) above is
cured within such 60-day period, it ceases to be a Default.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series (other
than an Event of Default specified in clause (6) or (7) of Section 501) occurs
and is continuing, the Trustee by notice in writing to the Company, or the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series by notice in writing to the Company and the Trustee,
may declare the unpaid principal of and accrued interest to the date of
acceleration (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) on all the Outstanding Securities of that series to be due
and payable immediately and, upon any such declaration, the Outstanding
Securities of that series (or specified principal amount) shall become and be
immediately due and payable.
If an Event of Default specified in clause (6) or (7) of Section 501
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or specified principal amount) shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder of any Security of that series.
Upon payment of all such principal and interest, all of the Company's
obligations under the Securities of that series and (upon payment of the
Securities of all series) this Indenture shall terminate, except obligations
under Section 607.
At any time after a declaration of acceleration of Maturity 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 notice to the Trustee may
rescind an acceleration and its consequences if (i) all existing Events of
Default, other than the nonpayment of the principal of and interest on the
Securities of that series that has become due solely by such declaration of
acceleration, have been cured or waived, (ii) to the extent the payment of such
interest is lawful, interest on overdue installments of interest and overdue
principal that has become due otherwise than by such declaration of acceleration
have been paid, (iii) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction and (iv) all payments due to the
Trustee and any predecessor Trustee under Section 607 have been made.
SECTION 503. 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 of
any series when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security of any series at the Maturity thereof, or
<PAGE>
(3) default is made in the payment of any sinking or analogous
obligation when the same becomes due by the terms of the Securities of any
series, and any such default continues for any period of grace provided with
respect to the Securities of such series,
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 and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such 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 and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and 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 secure any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest 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 agent and counsel) and of the Holders allowed in
such judicial proceedings, and
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<PAGE>
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of 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 607.
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 505. 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.
SECTION 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article in respect
of the Securities of any series 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, premium, if any, or interest, upon presentation
of the Securities in respect of which moneys have been collected 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
607 applicable to such series;
Second: To the payment of the amounts then due and unpaid for
principal of, and premium, if any, and interest on the Securities of such series
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 of such series for principal, and premium, if
any, and interest, respectively; and
Third: To the Company.
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The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 506. At least ten (10) days before such record
date, the Trustee shall mail to each Holder and the Company a notice that states
the record date, the payment date and the amount to be paid.
SECTION 507. 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 receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of at least 25% in 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 shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of Holders of Securities of
any series 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 of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders of Securities of the affected series.
SECTION 508. 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, premium, if any, and (subject to Section
307) interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
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SECTION 509. 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 has been instituted.
SECTION 510. 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 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. 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 by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. 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 may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to Section 601, the Trustee need not take any action
which might involve the Trustee in personal liability or be unduly prejudicial
to the Holders not joining therein.
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SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may by written notice to the Trustee on
behalf of the Holders of all the Securities of such series waive any Default or
Event of Default with respect to such series and its consequences, except a
Default or Event of Default
(1) in respect of 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 other 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 or Event of Default shall cease to
exist and shall be deemed to have been cured, for every purpose of this
Indenture and the Securities of such series; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 514. 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
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or premium, if
any, or interest on any Security on or after the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities of the Trustee.
--------------------------------------------------
(a) Except during the continuance of an Event of Default, the
Trustee's duties and responsibilities under this Indenture shall be governed by
Section 315(a) of the Trust Indenture Act.
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(b) In case an Event of Default has occurred and is continuing, and
is known to the Trustee, the Trustee shall exercise the rights and powers vested
in it by this Indenture, and shall 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) None of the provisions of Section 315(d) of the Trust Indenture
Act shall be excluded from this Indenture.
(d) Every provision of this Indenture which pertains to the Trustee
shall be subject to this Section 601.
SECTION 602. Notice of Defaults.
------------------
Within 90 days after the occurrence of any Default or Event of Default
with respect to the Securities of any series, the Trustee shall give to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, notice of such Default or Event of Default known to the
Trustee, unless such Default or Event of Default shall have been cured or
waived; provided, however, that, except in the case of a Default or Event of
Default in the payment of the principal of or premium, if any, or interest on
any Security of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series.
SECTION 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of the Trust Indenture Act:
(a) 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;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
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(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such Events
of Default which may have occurred, 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, approval or other paper or document, or the books and records of the
Company, unless requested in writing to do so by the Holders of a majority in
principal amount of the Outstanding Securities of any series; provided, however,
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is not, in the opinion of the Trustee, reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding; the reasonable expense of every
such investigation shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be required 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 its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder, and that the
statements made by it or to be made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company are true and accurate.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds thereof.
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SECTION 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder (including amounts held
by the Trustee as Paying Agent) need not be segregated from other funds except
to the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed upon
in writing with the Company.
SECTION 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
as negotiated between the Company and the Trustee for all services rendered
by it hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee 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, damage, claim or expense, including taxes (other than
taxes based upon or determined or measured by the income of the Trustee),
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(6) or Section 501(7), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Bankruptcy Law.
The provisions of this Section 607 shall survive this Indenture and
the resignation or removal of the Trustee.
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SECTION 608. Disqualification; Conflicting Interests.
---------------------------------------
The Trustee shall be disqualified only where such disqualification is
required by Section 310(b) of the Trust Indenture Act. Nothing shall prevent
the Trustee from filing with the Commission the application referred to in the
second to last paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Section 310(a)(1) of the Trust Indenture Act
having a combined capital and surplus of at least $100,000,000 and subject to
supervision or examination by federal or State authority. If such corporation
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 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 may serve as Trustee. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. 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 611.
(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 611 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 the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months; or
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(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder of a Security who has been a bona fide Holder of a Security
for at least six months; 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 315(e) of the
Trust Indenture Act, 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 611. 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
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company with
respect to such Securities. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by 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.
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SECTION 611. 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 such (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
such 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 and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under the Trust Indenture Act.
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SECTION 612. 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, consolidation or otherwise as permitted hereunder) 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 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 614. 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, and subject to the
direction of, the Trustee to authenticate Securities of such series issued upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the 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 a combined capital and surplus of not less than $100,000,000 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, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to 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, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and 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 the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation as negotiated between the Company and such
Authenticating Agent for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Form of Authenticating Agent's
Certificate of Authentication
Dated: ____________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
____________________________________
As Trustee
By ________________________________
As Authenticating Agent
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By ________________________________
Authorized Signatory
SECTION 615. Compliance with Tax Laws.
------------------------
The Trustee hereby agrees to comply with all U.S. Federal income tax
information reporting and withholding requirements applicable to it with respect
to payments of premium (if any) and interest on the Securities of any series,
whether acting as Trustee, Security Registrar, Paying Agent or otherwise with
respect to the Securities of any series.
ARTICLE SEVEN
Holders' Lists And Reports By Trustee And Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for each series of Securities, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities as
of such Regular Record Date (unless the Trustee has such information), or if
there is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
SECTION 702. 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 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 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
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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
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 702(a); or
(ii) 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
702(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
702(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 objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such Holders
with reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(c) Every Holder of Securities, 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 702(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 702(b).
SECTION 703. Reports by Trustee.
------------------
(a) Within 60 days after May 15 of each year commencing with the year
2000, the Trustee shall transmit by mail to all Holders of Securities as
provided in Section 313(c) of the Trust Indenture Act, a brief report dated as
of May 15, if required by and in compliance with Section 313(a) of the Trust
Indenture Act. The Trustee shall also comply with Section 313(b) of the Trust
Indenture Act.
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(b) 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 704. 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 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 conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, (a) concurrently with furnishing the same
to its stockholders, the Company's annual report to stockholders,
containing certified financial statements, and any other financial reports
which the Company generally furnishes to its stockholders, and (b) within
30 days after the filing thereof with the Trustee, such summaries of any
other 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; and
(4) furnish to the Trustee, on or before May 1 of each year, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
Indenture. For purposes of this paragraph, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture. Such certificate need not comply with
Section 102.
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ARTICLE EIGHT
Consolidation, Merger, Lease, Sale or Transfer
SECTION 801. When Company May Merge, Etc.
----------------------------
The Company shall not consolidate with, or merge with or into, any
other Person (whether or not the Company shall be the surviving corporation), or
convey, transfer or lease all or substantially all of its properties and assets
as an entirety or substantially as an entirety to any Person or group of
affiliated Persons, in one transaction or a series of related transactions,
unless:
(1) either the Company shall be the continuing Person or the Person
(if other than the Company) formed by such consolidation or with which or
into which the Company is merged or the Person (or group of affiliated
Persons) to which all or substantially all the properties and assets of the
Company as an entirety or substantially as an entirety are conveyed,
transferred or leased shall be a corporation (or constitute corporations)
organized and existing under the laws of the United States of America or
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, all the obligations of the Company
under the Securities and this Indenture; and
(2) immediately after giving effect to such transaction or series of
related transactions, no Event of Default, and no Default, shall have
occurred and be continuing.
SECTION 802. Opinion of Counsel.
------------------
The Company shall deliver to the Trustee prior to the proposed
transaction(s) covered by Section 801 an Officers' Certificate and an Opinion of
Counsel stating that the transaction(s) and such supplemental indenture comply
with this Indenture and that all conditions precedent to the consummation of the
transaction(s) under this Indenture have been met.
SECTION 803. Successor Corporation Substituted.
---------------------------------
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease all or
substantially all of the property and assets of the Company in accordance with
Section 801, the successor corporation formed by such consolidation or into
which the Company is merged or the successor corporation or affiliated group of
corporations to which such lease, sale, assignment or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation or corporations had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor corporation or
corporations shall be relieved of all obligations and covenants under this
Indenture and the Securities and in the event of such conveyance or transfer,
except in the case of a lease, any such predecessor corporation may be dissolved
and liquidated.
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ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without notice to or 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 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 with respect to all or
any series of Securities; or
(4) to add 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 or not registrable as to principal,
and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) 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 611(b); or
(9) to cure any ambiguity, defect or inconsistency or to correct or
supplement any provision herein which may be inconsistent with any other
provision herein; or
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(10) to make any change that does not materially adversely affect the
interests of the Holders of Securities of any series; or
(11) to add guarantees with respect to any or all of the Securities;
or
(12) to provide for uncertificated Securities in addition to or in
place of certificated Securities (provided that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of
the Internal Revenue Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of such Code).
Upon request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in (and subject to the last sentence
of) Section 903, the Trustee shall join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms of this Indenture.
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the written consent of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture (with the Securities of each series voting as a class),
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by a Board Resolution, and the Trustee shall, subject to Section
903, enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or premium, if
any, or any installment of principal of or premium, if any, or interest on,
any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption, repurchase or
repayment thereof, or change the manner in which the amount of any
principal thereof or premium, if any, or interest thereon is determined, or
reduce the amount of the principal of any Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502, or change any Place of Payment
where, or the coin or currency or currency unit in which, any Security or
any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
Defaults or Events of Default hereunder and their consequences provided for
in this Indenture; or
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(3) change the redemption provisions (including Article Eleven)
hereof in a manner adverse to such Holder; or
(4) modify any of the provisions of this Section, Section 513 or
Section 1013, 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; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1013, or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provisions 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 903. Execution of Supplemental Indentures.
------------------------------------
The Trustee shall sign any supplemental indenture authorized pursuant
to this Article, subject to the last sentence of this Section 903. 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 601) shall be fully protected in relying upon, an Officers'
Certificate and 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 904. 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 905. 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 906. 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 TEN
Covenants
SECTION 1001. Payments of Securities.
----------------------
With respect to each series of Securities, the Company will duly and
punctually pay the principal of (and premium, if any) and interest on such
Securities in accordance with their terms and this Indenture, and will duly
comply with all the other terms, agreements and conditions contained in, or made
in the Indenture for the benefit of, the Securities of such series.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain an office or agency in each Place of Payment
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment, where notices and demands to or upon the Company
in respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee as set forth in Section 105
hereof.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 1003. Corporate Existence.
-------------------
Subject to Article 8 hereof, 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 of its Subsidiaries and the rights (charter and
statutory), licenses and franchises of the Company and its Subsidiaries;
provided, however, that (a) the Company shall not be required to preserve any
such
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right, license or franchise or the corporate existence of any of its
Subsidiaries if the Board of Directors, or the board of directors of the
Subsidiary concerned, as the case may be, shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company or
any of its Subsidiaries and that the loss thereof is not materially
disadvantageous to the Holders, and (b) nothing herein contained shall prevent
any Subsidiary of the Company from liquidating or dissolving, or merging into,
or consolidating with the Company (provided that the Company shall be the
continuing or surviving corporation) or with any one or more other Subsidiaries
if the Board of Directors or the board of directors of the Subsidiary concerned,
as the case may be, shall so determine.
SECTION 1004. 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 material 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 for which adequate provision has been made.
SECTION 1005. Maintenance of Properties.
-------------------------
The Company will cause all material properties used or useful in the
conduct of its business or the business of any of its Subsidiaries to be
maintained and kept in good condition, repair and working order (normal wear and
tear excepted) 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 or 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 or of the board of directors of
the Subsidiary concerned, as the case may be, desirable in the conduct of the
business of the Company or any Subsidiary of the Company and not materially
disadvantageous to the Holders.
SECTION 1006. Compliance Certificates.
-----------------------
(a) The Company shall deliver to the Trustee within 90 days after the
end of each fiscal year of the Company (which fiscal year currently ends on
December 31), an Officers' Certificate stating whether or not the signer
knows of any Default or Event of Default by the Company that occurred prior
to the end of the fiscal year and is then continuing. If the signer does
know of such a Default or Event of Default, the certificate shall describe
each such Default or Event of Default and its status and the specific
section or sections of this Indenture in connection with which such Default
or Event of Default has occurred. The Company shall
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also promptly notify the Trustee in writing should the Company's fiscal
year be changed so that the end thereof is on any date other than the date
on which the Company's fiscal year currently ends. The certificate need not
comply with Section 102 hereof, but shall comply with Section 314(a)(4) of
the Trust Indenture Act.
(b) The Company shall deliver to the Trustee, within 10 days after
the occurrence thereof, notice of any acceleration which with the giving of
notice and the lapse of time would be an Event of Default within the
meaning of Section 501(5) hereof.
(c) The Company shall deliver to the Trustee within 100 days after
the end of each fiscal year a written statement by the Company's
independent certified public accountants stating (i) that their audit
examination has included a review of the terms of this Indenture and the
Securities as they relate to accounting matters and (ii) whether, in
connection with their audit examination, any Default has come to their
attention and if such a Default has come to their attention, specifying the
nature and period of existence thereof and the specific section or sections
of this Indenture in connection with which such Default has occurred;
provided that, without any restriction as to the scope of the audit
examination, such independent certified public accountants shall not be
liable by reason of the failure to obtain knowledge of such Default that
would not be disclosed in the course of an audit examination conducted in
accordance with generally accepted auditing standards.
(d) The Company shall deliver to the Trustee forthwith upon becoming
aware of a Default or Event of Default (but in no event later than 10 days
after the occurrence of each Default or Event of Default that is
continuing), an Officers' Certificate setting forth the details of such
Default or Event of Default and the action that the Company proposes to
take with respect thereto and the specific section or sections of this
Indenture in connection with which such Default or Event of Default has
occurred.
SECTION 1007. Commission Reports.
------------------
(a) The Company shall file with or otherwise make available to the
Trustee, within 30 days after it files them with the Commission, copies of
the quarterly and annual reports and of the information, documents, and
other reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) which the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act. If the Company is not subject to the requirement of such
Section 13 or 15(d) of the Exchange Act, the Company shall file with the
Trustee, within 30 days after it would have been required to file such
information with the Commission, financial statements, including any notes
thereto and, with respect to annual reports, an auditors' report by an
accounting firm of established national reputation and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations,"
both comparable to that which the Company would have been required to
include in such annual reports, information, documents or other reports if
the Company had been subject to the requirements of such Sections 13 or
15(d) of the Exchange Act. The Company also shall comply with the other
provisions of Section 314(a) of the Trust Indenture Act.
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(b) So long as the Securities remain outstanding, the Company shall
cause its annual report to stockholders and any other financial reports
furnished by it to stockholders generally, to be mailed to the Holders at
their addresses appearing in the register of Securities maintained by the
Security Registrar in each case at the time of such mailing or furnishing
to stockholders. If the Company is not required to furnish annual or
quarterly reports to its stockholders pursuant to the Exchange Act, the
Company shall cause its financial statements, including any notes thereto
and, with respect to annual reports, an auditors' report by an accounting
firm of established national reputation and a "Management's Discussion and
Analysis of Financial Condition and Results of Operations," to be so filed
with the Trustee and mailed to the Holders within 90 days after the end of
each of the Company's fiscal years and within 45 days after the end of each
of the first three quarters of each fiscal year.
(c) The Company shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information that the Company
may be required to deliver to the Holders under this Section 1007.
SECTION 1008. Waiver of Stay, Extension or Usury 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, and will actively resist any and all efforts to be compelled to take the
benefit or advantage of, any stay or extension law or any usury law or other
law, which would prohibit or forgive the Company from paying all or any portion
of the principal of and/or interest on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 1009. 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
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 Company will promptly notify the Trustee of its action
or failure to so act.
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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 one
year 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; provided, however, that the Trustee of 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 New York, 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 1010. Limitations on Liens.
--------------------
Unless the terms of a particular series of Securities otherwise
provide, so long as any Securities of such series remain Outstanding, the
Company will not, nor will it permit any Restricted Subsidiary to, issue, incur,
create, assume or guarantee any Indebtedness secured by a mortgage, security
interest, pledge, lien, charge or other encumbrance (mortgages, security
interests, pledges,
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liens, charges and other encumbrances being hereinafter in this Article Ten
referred to as "lien" or "liens") upon any assets of the Company or any
Restricted Subsidiary (whether such assets are now existing or owned or
hereafter created or acquired) without in any such case effectively providing
concurrently with the issuance, incurrence, creation, assumption or guaranty of
any such Indebtedness that the Securities of such series (together with, if the
Company shall so determine, any other indebtedness of or guarantee by the
Company or such Restricted Subsidiary ranking equally with the Securities of
such series and then existing or thereafter created) shall be secured equally
and ratably with (or, at the Company's option, prior to) such secured
Indebtedness until such time as such Indebtedness is no longer secured by a
lien. The preceding sentence shall not require the Company to secure any
Securities of such series if the lien consists of either of the following:
(a) Permitted Liens; or
(b) liens securing Indebtedness if, after giving pro forma effect to
the incurrence, creation, assumption or guaranty of such Indebtedness (and the
receipt and application of the proceeds thereof) or the securing of outstanding
Indebtedness, the sum of (without duplication) (i) the aggregate principal
amount of all such Indebtedness of the Company and its Subsidiaries secured by
liens (other than Permitted Liens) upon the assets of the Company or any
Restricted Subsidiary or, if less, the fair market value of the property subject
to such lien, as determined in good faith by the Board of Directors and (ii) all
Attributable Debt in respect of Sale and Lease-Back Transactions not otherwise
permitted under Section 1011, at the time of determination does not exceed 10%
of Consolidated Net Worth.
SECTION 1011. Limitations on Sale and Lease-Back Transactions.
-----------------------------------------------
Unless the terms of a particular series of Securities otherwise
provide, so long as any Securities of such series remain Outstanding, the
Company will not, nor will it permit any Restricted Subsidiary to, enter into
any Sale and Lease-Back Transaction unless (a) the Company or such Restricted
Subsidiary would be entitled to incur Indebtedness secured by a lien on such
assets in an amount at least equal to the Attributable Debt with respect to such
Sale and Lease-Back Transaction without equally and ratably securing the
Securities of such series pursuant to Section 1010 or (b) the Company, within
120 days after the effective date of such Sale and Lease-Back Transaction,
applies an amount equal to the value of such assets to the defeasance or
retirement (other than any mandatory retirement, mandatory prepayment or sinking
fund payment or by way of payment at maturity) of Securities or other
Indebtedness of the Company or a Restricted Subsidiary that matures more than
one year after the creation of such Indebtedness or to the purchase,
construction or development of other comparable property.
SECTION 1012. Restrictions on Debt of Restricted Subsidiaries.
-----------------------------------------------
The Company shall not permit any Restricted Subsidiary to create,
incur, issue, assume or guarantee any Funded Debt, except: (a) Funded Debt
outstanding on the date of this Indenture;
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(b) Funded Debt incurred by a Restricted Subsidiary and held by the Company or
any other Subsidiary; (c) Funded Debt created, incurred, issued, assumed or
guaranteed by a Person prior to the time (i) such Person became a Restricted
Subsidiary; (ii) such Person merges into or consolidates with a Restricted
Subsidiary; or (iii) a Restricted Subsidiary merges into or consolidates with
such Person (in a transaction in which such Person becomes a Restricted
Subsidiary) (in the case of each of clauses (i), (ii) and (iii), which Funded
Debt was not incurred in anticipation of such transaction and was outstanding
prior to such transaction); (d) Funded Debt incurred to provide funds for all or
part of the cost of acquisition, construction, development or improvement of
property (including shares of equity interests), provided that the commitment of
the creditor to extend the credit evidenced by such Funded Debt shall have been
obtained not later than 180 days after the later of (i) the completion of the
acquisition, construction, development or improvement of such property or (ii)
the placing in operation of such property; (e) Funded Debt which is exchanged
for, or the proceeds of which are used to replace or refund, any Funded Debt
permitted to be outstanding pursuant to clauses (a) through (d) above (or any
extension or renewal thereof), in an aggregate principal amount not to exceed
the principal amount of the Indebtedness so exchanged, replaced or refunded; (f)
Funded Debt not otherwise permitted pursuant to clauses (a) through (e) above
that, together with any other outstanding Funded Debt created, incurred, issued,
assumed or guaranteed pursuant to this clause (f), has an aggregate principal
amount at any time outstanding that does not exceed 15% of Consolidated Net
Worth; and (g) Funded Debt which would be permitted to be incurred under Section
1010.
SECTION 1013. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1010, 1011 or 1012 with
respect to the Securities of any series if before the time for such compliance
the Holders of not less than a majority in principal amount of the Outstanding
Securities of such series shall, by Act or such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. 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 301 for Securities of any series)
in accordance with this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. 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 45 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 1103. 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 90 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, substantially pro rata, by lot
or by any other method as the Trustee considers fair and appropriate and that
complies with the requirements of the principal national securities exchange, if
any, on which such Securities are listed, and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series; provided that
in case the Securities of such series have different terms and maturities, the
Securities to be redeemed shall be selected by the Company and the Company shall
give notice thereof to the Trustee.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of the 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 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 45 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;
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(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;
(6) that the redemption is for a sinking fund, if such is the case;
and
(7) the CUSIP number, if any, of the Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
---------------------------
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 1009) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
SECTION 1106. 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
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Regular or Special Record Dates
according to their terms and the provisions of Section 307.
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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 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Sinking Funds
SECTION 1201. 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 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. 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 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Securities of a series (other than any
Securities 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
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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 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered (which have not been previously delivered). Not less than 30
days before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 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 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Applicability of Article; Company's Option to Effect Defeasance
---------------------------------------------------------------
or Covenant Defeasance.
----------------------
Unless pursuant to Section 301 provision is made for the
inapplicability of either or both of (a) defeasance of the Securities of a
series under Section 1302 or (b) covenant defeasance of the Securities of a
series under Section 1303, then the provisions of such Section or Sections, as
the case may be, together with the other provisions of this Article, shall be
applicable to the Securities of such series, and the Company may at its option
by Board Resolution, at any time, with respect to the Securities of such series,
elect to have either Section 1302 (unless inapplicable) or Section 1303 (unless
inapplicable) be applied to the Outstanding Securities of such series upon
compliance with the applicable conditions set forth below in this Article.
SECTION 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section 1301 to
defease the Outstanding Securities of a particular series, the Company shall be
discharged from its obligations with respect to the Outstanding Securities of
such series on the date the applicable conditions set forth in Section 1304 are
satisfied (hereinafter, "defeasance"). Defeasance shall mean that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Outstanding Securities of such series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same); provided, however, that
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the following rights, obligations, powers, trusts, duties and immunities shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of Outstanding Securities of such series to receive, solely from the
trust fund provided for in Section 1304, payments in respect of the principal of
(and premium, if any) and interest on such Securities when such payments are
due, (B) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1009, (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article, the Company may exercise its option with respect
to defeasance under this Section 1302 notwithstanding the prior exercise of its
option with respect to covenant defeasance under Section 1303 in regard to the
Securities of such series.
SECTION 1303. Covenant Defeasance.
-------------------
Upon the Company's exercise of the option provided in Section 1301 to
obtain a covenant defeasance with respect to the Outstanding Securities of a
particular series, the Company shall be released from its obligations under this
Indenture (except its obligations under Sections 304, 305, 306, 506, 509, 610,
1001, 1002, 1006, 1008 and 1009) with respect to the Outstanding Securities of
such series on and after the date the applicable conditions set forth in Section
1304 are satisfied (hereinafter, "covenant defeasance"). Covenant defeasance
shall mean that, with respect to the Outstanding Securities of such series, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in this Indenture (except its
obligations under Sections 304, 305, 306, 506, 509, 610, 1001, 1002, 1006, 1008
and 1009), whether directly or indirectly by reason of any reference elsewhere
herein or by reason of any reference to any other provision herein or in any
other document, and such omission to comply shall not constitute an Event of
Default under Section 501(4) with respect to Outstanding Securities of such
series, and the remainder of this Indenture and of the Securities of such series
shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to defeasance under Section 1302
and covenant defeasance under Section 1303 with respect to the Outstanding
Securities of a particular series:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article applicable to it), under the terms of an irrevocable trust
agreement in form and substance reasonably satisfactory to such Trustee, as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of such Securities, (a) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, after payment of all federal,
state and local taxes or other charges or assessments in respect thereof
payable by the Trustee, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by
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the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any, on) and each installment of principal of
(and premium, if any) and interest on the Outstanding Securities of such
series on the Stated Maturity of such principal or installment of principal
or interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such series on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities.
(2) No Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit, and no Default or Event
of Default under clause (6) or (7) of Section 501 hereof shall occur and be
continuing, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(3) Such deposit, 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.
(4) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any national securities exchange
registered under the Exchange Act to be delisted.
(5) In the case of an election with respect to Section 1302, the
Company shall have delivered to the Trustee either (a) a ruling directed to
the Trustee received from the Internal Revenue Service to the effect that
the Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such defeasance had not occurred or (B) an Opinion of Counsel, based on
such ruling or on a change in the applicable federal income tax law since
the date of this Indenture, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(6) In the case of an election with respect to Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel or a
ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for federal income tax purposes as
a result of such covenant defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the
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<PAGE>
same times as would have been the case if such covenant defeasance had not
occurred.
(7) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1302
or the covenant defeasance under Section 1303 (as the case may be) have
been complied with.
SECTION 1305. Deposited Money and Government Obligations To Be Held In Trust.
--------------------------------------------------------------
Subject to the provisions of the last paragraph of Section 1009, all
money and Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee--collectively for purposes of this
Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of a particular series shall be held in trust and applied
by the Trustee, 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 in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof, other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations held by it as provided in Section 1304 with
respect to Securities of any series which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited for the purpose for which
such money or Government Obligations were deposited.
SECTION 1306. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money or
U.S. Government Obligations, as the case may be, 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 1302 or
1303 shall be revived and reinstated as though no deposit had occurred pursuant
to this Article with respect to such
75
<PAGE>
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money or U.S. Government Obligations, as the case may be, held in trust
pursuant to Section 1305 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 or U.S.
Government Obligations, as the case may be, so held in trust.
ARTICLE FOURTEEN
Miscellaneous
SECTION 1401. Miscellaneous.
-------------
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.
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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.
TRUE NORTH COMMUNICATIONS INC.
By: _________________________________
Name: ____________________________
Title: ___________________________
[SEAL]
Attest:
_____________________________
Name: _______________________
Title: ______________________
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: __________________________________
Name: ____________________________
Title: ___________________________
[SEAL]
Attest:
_____________________________
Name: _______________________
Title: ______________________
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STATE OF ILLINOIS )
) SS.:
COUNTY OF ________ )
On the ___ day of ________, 1999, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he or she is ________________________ of True North Communications
Inc., one of the parties described in and which executed the foregoing
instrument; that he or she knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he or she
signed his or her name thereto by like authority.
______________________________
My commission expires:
<PAGE>
STATE OF ILLINOIS )
) SS.:
COUNTY OF COOK )
On the ____ day of ___________, 1999, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he or she is ________________ of The First National Bank of Chicago,
one of the parties described in and which executed the foregoing instrument;
that he or she knows the seal of said bank; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said bank, and that he or she signed his or her name
thereto by like authority.
______________________________
My commission expires:
<PAGE>
EXHIBIT 12.1
True North Communications Inc.
Ratio of Earnings to Fixed Charges
1994-1998
($000)
<TABLE>
<CAPTION>
12/31/94 12/31/95 12/31/96 12/31/97 12/31/98 3/31/98 3/31/99
-------- -------- -------- -------- --------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Income (loss) before income taxes and
extraordinary charges............... $ 56,234 $ 44,086 $ 46,270 $(43,128) $ 81,263 $ 8,218 $ 12,363
Fixed charges:
Interest expense and amortization
of debt discount and premium...... $ 15,674 $ 16,734 $ 16,006 $ 20,178 $ 22,242 $ 4,631 $ 4,388
Interest factor on rentals (33 %).. $ 21,337 $ 22,249 $ 24,927 $ 26,749 $ 26,664 $ 6,707 $ 6,247
Total fixed charges............... $ 37,011 $ 38,983 $ 40,933 $ 46,927 $ 48,906 $ 11,338 $ 10,635
Income (loss) before income taxes,
extraordinary charges
and fixed charges................... $ 93,245 $ 83,069 $ 87,203 $ 3,799 $ 130,169 $ 19,556 $ 22,998
Ratio of earnings to fixed charges... 2.52 2.13 2.13 0.08(1) 2.66 1.72 2.16
</TABLE>
- --------
Note: On December 30, 1997, True North Communications Inc. ("True North")
acquired Bozell, Jacobs, Kenyon & Eckhardt, Inc. ("BJK&E") through a
merger which resulted in BJK&E becoming a wholly-owned subsidiary of True
North. The merger was accounted for as a "pooling of interests." As a
result, True North's financial statements for each of its fiscal years
ended December 31, 1994 through December 31, 1997 were restated. True
North's fiscal year ends on December 31; BJK&E's fiscal year ended on
March 31. True North's financial reporting period ending December 31 was
adopted by the combined entity. For purposes of calculating the ratio of
earnings to fixed charges, the year-ends of the two companies were
conformed only for fiscal years ended December 31, 1995 and thereafter as
permitted under Regulation S-X.
In February 1999, True North issued 1,201,000 shares of its common stock
for all of the outstanding capital stock of The Financial Relations
Board, Inc., a Chicago-based investor relations firm. This acquisition
has been accounted for as a pooling of interests and, accordingly, the
consolidated financial statements have been restated for all periods
prior to the acquisition.
(1) The ratio of earnings to fixed charges for the year ended December 31,
1997 before restructuring charges of $80,946 and other unusual or one-
time write-offs of $56,852 was 3.02x. The restructuring charges related
primarily to costs incurred resulting from the acquisition of BJK&E and
other one-time write-offs occurring during the year or at the time of the
acquisition.
<PAGE>
EXHIBIT 23.1
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of our reports dated March
22, 1999 incorporated by reference in True North Communications Inc.'s Form 10-
K for the year ended December 31, 1998 and to all references to our Firm
included in this Registration Statement.
Arthur Andersen LLP
Chicago, Illinois
July 7, 1999
<PAGE>
EXHIBIT 23.2
[LETTERHEAD OF KPMG LLP]
ACCOUNTANTS' CONSENT
The Board of Directors
True North Communications Inc.
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus.
KPMG LLP
Omaha, Nebraska
July 7, 1999
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
---------------------------------
TRUE NORTH COMMUNICATIONS INC.
(Exact name of obligor as specified in its charter)
Delaware 36-1088161
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
101 East Erie Street
Chicago, Illinois 60611-2897
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following information as to the
trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation, Washington, D.C.;
The Board of Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of this
Statement of Eligibility.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to commence
business.*
3. A copy of the authorization of the trustee to exercise corporate
trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
<PAGE>
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 8th day of June, 1999.
The First National Bank of Chicago,
Trustee
By /s/ Sandra L. Caruba
---------------------
Sandra L. Caruba
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
June 8, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Indenture by and between True North
Communications Inc. and The First National Bank of Chicago, as Trustee, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ Sandra L. Caruba
---------------------
Sandra L. Caruba
Vice President
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/99
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for March 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
RCFD BIL MIL THOU ----
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from
depository institutions (from
Schedule RC-A): RCFD
----
a. Noninterest-bearing balances
and currency and coin(1)......... 0081 3,809,517 1.a
b. Interest-bearing balances(2)..... 0071 4,072,166 1.b
2. Securities
a. Held-to-maturity securities
(from Schedule RC-B, column A)... 1754 0 2.a
b. Available-for-sale securities
(from Schedule RC-B, column D)... 1773 12,885,728 2.b
3. Federal funds sold and securities
purchased under agreements to
resell.............................. 1350 4,684,756 3.
4. Loans and lease financing
receivables:
a. Loans and leases, net of RCFD
unearned income (from Schedule ----
RC-C)............................ 2122 34,304,806 4.a
b. LESS: Allowance for loan and
lease losses..................... 3123 411,476 4.b
c. LESS: Allocated transfer risk
reserve.......................... 3128 3,884 4.c
d. Loans and leases, net of
unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and ----
4.c)............................. 2125 33,889,446 4.d
5. Trading assets (from Schedule RD-D). 3545 5,100,499 5.
6. Premises and fixed assets
(including capitalized leases)...... 2145 754,052 6.
7. Other real estate owned (from
Schedule RC-M)...................... 2150 5,244 7.
8. Investments in unconsolidated
subsidiaries and associated
companies (from Schedule RC-M)...... 2130 201,068 8.
9. Customers' liability to this bank
on acceptances outstanding.......... 2155 265,041 9.
10. Intangible assets (from Schedule
RC-M)............................... 2143 285,709 10.
11. Other assets (from Schedule RC-F)... 2160 2,987,184 11.
12. Total assets (sum of items 1
through 11)......................... 2170 68,940,410 12.
</TABLE>
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/99
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits
a. In domestic offices (sum of RCON
totals of columns A and C ----
from Schedule RC-E, part 1)....... 2200 22,163,664 13.a
(1) Noninterest-bearing(1)........ 6631 9,740,100 13.a1
(2) Interest-bearing.............. 6636 12,423,564 13.a2
b. In foreign offices, Edge and RCFN
Agreement subsidiaries, and ----
IBFs (from Schedule RC-E, part II) 2200 19,273,426 13.b
(1) Noninterest bearing........... 6631 334,741 13.b1
(2) Interest-bearing.............. 6636 18,938,685 13.b2
14. Federal funds purchased and securities
sold under agreements to repurchase: RCFD 2800 4,405,792 14
15. a. Demand notes issued to the
U.S. Treasury..................... RCON 2840 173,505 15.a
b. Trading Liabilities (from
Schedule RC-D).................... RCFD 3548 4,824,567 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year ----
or less........................... 2332 7,453,761 16.a
b. With original maturity of more than
one year.......................... A547 330,300 16.b
c. With original maturity of more than
three years....................... A548 357,737 16.c
17. Not applicable
18. Bank's liability on acceptance executed
and outstanding...................... 2920 265,041 18.
19. Subordinated notes and debentures.... 3200 2,600,000 19.
20. Other liabilities (from Schedule RC-G) 2930 1,878,367 20.
21. Total liabilities (sum of items 13
through 20).......................... 2948 63,726,160 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related
surplus.............................. 3838 0 23.
24. Common stock......................... 3230 200,858 24.
25. Surplus (exclude all surplus related
to preferred stock).................. 3839 3,239,836 25.
26. a. Undivided profits and capital
reserves.......................... 3632 1,813,367 26.a
b. Net unrealized holding gains
(losses) on available-for-sale
securities........................ 8434 (37,357) 26.b
c. Accumulated net gains (losses)
on cash flow hedges............... 4336 0 26.c
27. Cumulative foreign currency translation
adjustments.......................... 3284 (2,454) 27.
28. Total equity capital (sum of items 23
through 27).......................... 3210 5,214,250 28.
29. Total liabilities, limited-life
preferred stock, and equity capital
(sum of items 21, 22, and 28)........ 3300 68,940,410 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level of auditing work
performed for the bank by independent external auditors as of any date
during 1996 ....................RCFD 6724 ....... -------
N/A Number
------- M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
