<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 25, 1996
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
TRIBUNE COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-1880355
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
435 NORTH MICHIGAN AVENUE
CHICAGO, ILLINOIS 60611
(312) 222-9100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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DAVID J. GRANAT, VICE PRESIDENT AND TREASURER
TRIBUNE COMPANY
435 NORTH MICHIGAN AVENUE
CHICAGO, ILLINOIS 60611
(312) 222-3897
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
Copies of communications to:
LARRY A. BARDEN EDWARD S. BEST
SIDLEY & AUSTIN MAYER, BROWN & PLATT
ONE FIRST NATIONAL PLAZA 190 SOUTH LASALLE STREET
CHICAGO, ILLINOIS 60603 CHICAGO, ILLINOIS 60603-3441
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AGGREGATE AGGREGATE AMOUNT OF
AMOUNT TO BE PRICE OFFERING PRICE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED (1) PER UNIT (1) FEE
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<S> <C> <C> <C> <C>
Debt Securities and Warrants to Purchase
Debt Securities........................... $500,000,000 (2) $500,000,000 $172,414
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</TABLE>
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(1) In United States dollars or the equivalent thereof in foreign denominated
currencies or composite currencies; or, if any Debt Securities are issued
at an original issue discount, such greater amount as shall result in an
aggregate public offering price or purchase price of $500,000,000 or the
equivalent thereof in foreign denominated currencies or composite
currencies. Estimated solely for purposes of calculating the registration
fee.
(2) The maximum offering price per unit has been omitted pursuant to Rule
457(o) under the Securities Act of 1933 and Securities Act Release No.
6964. The registration fee has been calculated in accordance with Rule
457(o) under the Securities Act of 1933 and reflects the public offering
price rather than the principal amount of any Debt Securities issued at a
discount.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, APRIL 25, 1996
PROSPECTUS
TRIBUNE COMPANY
DEBT SECURITIES AND
WARRANTS TO PURCHASE DEBT SECURITIES
Tribune Company (the "Company") intends to issue from time to time in one or
more series its unsecured debt securities ("Debt Securities") and warrants
("Warrants") to purchase Debt Securities (the Debt Securities and the Warrants
being herein collectively called the "Securities") with an aggregate initial
public offering price or purchase price of up to $500,000,000, or the
equivalent thereof if any of the Securities are denominated in a foreign
currency or composite currency such as the European Currency Unit ("ECU"). The
Debt Securities of each series and the Warrants will be offered on terms to be
determined at the time of sale. See "Description of Debt Securities" and
"Description of Warrants." The Debt Securities and Warrants may be sold for
United States dollars, foreign currencies or composite currencies such as the
ECU, and the principal of, premium, if any, and any interest on the Debt
Securities may be payable in United States dollars, foreign currencies or
composite currencies such as the ECU. The specific designation, aggregate
principal amount, the currency or composite currency in which the principal,
premium, if any, and any interest are payable, the rate (or method of
calculation) and the time and place of payment of any interest, authorized
denominations, maturity, offering price, any redemption terms and any other
specific terms of the Debt Securities in respect of which this Prospectus is
being delivered are set forth in the accompanying Prospectus Supplement (the
"Prospectus Supplement"). With regard to the Warrants, if any, in respect of
which this Prospectus is being delivered, the Prospectus Supplement sets forth
a description of the Debt Securities for which the Warrants are exercisable and
the offering price, if any, exercise price, duration and any other specific
terms of the Warrants.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CON-
TRARY IS A CRIMINAL OFFENSE.
The Securities may be sold by the Company directly to purchasers, through
agents designated from time to time, or to or through underwriters or dealers.
If underwriters or agents are involved in the offering of Securities, the names
of the underwriters or agents will be set forth in the Prospectus Supplement.
If an underwriter, agent or dealer is involved in the offering of any
Securities, the underwriter's discount, agent's commission or dealer's purchase
price will be set forth in, or may be calculated from the information set forth
in, the Prospectus Supplement, and the net proceeds to the Company from such
offering will be the public offering price of the Securities less such discount
in the case of an offering through an underwriter or the purchase price of the
Securities less such commission in the case of an offering through an agent,
and less, in each case, the other expenses of the Company associated with the
issuance and distribution of the Securities. See "Plan of Distribution."
The date of this Prospectus is , 1996
<PAGE>
AVAILABLE INFORMATION
Tribune Company (the "Company") is subject to the informational requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission") and with the New
York, Chicago and Pacific stock exchanges, on which the Company's Common Stock
is listed. Such reports, proxy statements and other information concerning the
Company can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the Commission's Regional Offices at Seven World Trade Center, 13th
Floor, New York, New York 10048; and Citicorp Center, 500 W. Madison Street,
14th Floor, Chicago, Illinois 60661. Copies of such materials can be obtained
upon written request addressed to the Commission, Public Reference Section, 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In addition,
such materials may be inspected at the offices of the New York Stock Exchange,
20 Broad Street, New York, New York 10005; the Chicago Stock Exchange, 440
South LaSalle Street, Chicago, Illinois 60605; and the Pacific Stock Exchange,
301 Pine Street, San Francisco, California 94104.
The Company has filed with the Commission a registration statement on Form S-
3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant to
Sections 13 and 14 of the Exchange Act (File No. 1-8572) are incorporated
herein by reference: (i) the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 and (ii) the Company's Current Reports on Form 8-K
dated January 8, 1996 and dated March 15, 1996. All documents filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the termination of the
offering of the Securities shall be deemed to be incorporated by reference in
this Prospectus.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated herein by reference, excluding the
exhibits to such documents (unless such exhibits are specifically incorporated
by reference in such documents). Requests should be directed to the Corporate
Relations Department, Tribune Company, Suite 600, 435 North Michigan Avenue,
Chicago, Illinois 60611, telephone (312) 222-3238.
2
<PAGE>
THE COMPANY
Tribune Company is an information, entertainment and education company.
Through its subsidiaries, the Company is engaged in the publishing of
newspapers, books, educational reference material and information in print and
digital formats and the broadcasting, production and syndication of information
and entertainment in metropolitan areas in the United States. The Company was
founded in 1847 and incorporated in Illinois in 1861. As a result of a
corporate restructuring in 1968, the Company became a holding company
incorporated in Delaware. The executive offices of the Company are located at
435 North Michigan Avenue, Chicago, Illinois 60611. Its telephone number is
(312) 222-9100.
USE OF PROCEEDS
The Company expects to add substantially all of the net proceeds from the
sale of the Securities to its general funds to be used for general corporate
purposes, including capital expenditures, working capital, repayment of long-
term and short-term debt, securities repurchase programs and the financing of
possible future acquisitions. Funds not required immediately may be invested in
short-term marketable securities.
RATIOS OF EARNINGS TO FIXED CHARGES
The Company's Ratios of Earnings to Fixed Charges for each of the periods
indicated are as follows:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
DECEMBER
------------------------
1995 1994 1993 1992 1991
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges..................... 8.7 8.2 6.4 4.9 4.0
</TABLE>
For purposes of computing the foregoing ratios: (i) Earnings consist of
income from continuing operations before cumulative effects of accounting
changes plus income tax expense and losses on equity investments plus Fixed
Charges (including amortization of capitalized interest but excluding
capitalized interest and interest related to the Company's guarantees of the
debt of its Employee Stock Ownership Plan); and (ii) Fixed Charges consist of
interest, whether expensed or capitalized, the portion of rental payments on
operating leases estimated to represent an interest component and interest
related to the Company's guarantees of the debt of its Employee Stock Ownership
Plan.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities will be issued under an Indenture dated as of March 1,
1992, as supplemented from time to time in accordance with its terms (the
"Indenture"), between the Company and First Trust of Illinois, National
Association, as successor trustee (the "Trustee"). The following brief summary
of the Indenture and the Debt Securities is subject to the detailed provisions
of the Indenture, a copy of which is an exhibit to the Registration Statement.
Wherever references are made to particular provisions of the Indenture, such
provisions are incorporated by reference as a part of the statements made
herein and such statements are qualified in their entirety by such reference.
Certain defined terms in the Indenture are capitalized herein. References in
italics are to section numbers of the Indenture.
The Indenture does not limit the amount of Debt Securities which may be
issued thereunder. It provides that Debt Securities may be issued from time to
time in series. The Debt Securities will be unsecured obligations of the
Company and will rank pari passu with all other unsecured and unsubordinated
indebtedness of the Company.
3
<PAGE>
Reference is made to the Prospectus Supplement for a description of the
following terms of the Debt Securities in respect of which this Prospectus is
being delivered: (i) the title of such Debt Securities; (ii) the limit, if any,
upon the aggregate principal amount of such Debt Securities; (iii) the dates on
which or periods during which such Debt Securities may be issued and the date
or dates on which the principal of (and premium, if any, on) such Debt
Securities will be payable; (iv) the rate or rates, if any, or the method of
determination thereof, at which such Debt Securities will bear interest, if
any; the date or dates from which such interest will accrue; the dates on which
such interest will be payable; and the regular record dates for the interest
payable on such interest payment dates; (v) the obligation, if any, of the
Company to redeem, repay or purchase such Debt Securities pursuant to any
sinking fund or analogous provisions or at the option of a holder and the
periods within which or the dates on which, the prices at which and the terms
and conditions upon which such Debt Securities will be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation; (vi) the periods
within which or the dates on which, the prices, if any, at which and the terms
and conditions upon which such Debt Securities may be redeemed, in whole or in
part, at the option of the Company; (vii) if other than denominations of $1,000
and any integral multiple thereof, the denominations in which such Debt
Securities will be issuable; (viii) whether such Debt Securities are to be
issued at less than the principal amount thereof and the amount of discount
with which such Debt Securities will be issued; (ix) provisions, if any, for
the defeasance of such Debt Securities; (x) if other than United States
dollars, the currency or composite currency in which such Debt Securities are
to be denominated, or in which payment of the principal of (and premium, if
any) and interest on such Debt Securities will be made and the circumstances,
if any, when such currency of payment may be changed; (xi) if the principal of
(and premium, if any) or interest on such Debt Securities are to be payable, at
the election of the Company or a holder, in a currency or composite currency
other than that in which such Debt Securities are denominated or stated to be
payable, the periods within which, and the terms and conditions upon which,
such election may be made and the time and the manner of determining the
exchange rate between the currency or composite currency in which such Debt
Securities are denominated or stated to be payable and the currency in which
such Debt Securities are to be paid pursuant to such election; (xii) if the
amount of payments of principal of (and premium, if any) or interest on the
Debt Securities may be determined with reference to an index including, but not
limited to an index based on a currency or currencies other than that in which
such Debt Securities are stated to be payable, the manner in which such amounts
shall be determined; (xiii) whether such Debt Securities will be issued in the
form of one or more Global Securities and, if so, the identity of the
Depository for such Global Securities; (xiv) any additional Events of Default
or covenants relating solely to such Debt Securities or any Events of Default
or covenants generally applicable to Debt Securities which are not to apply to
the particular series of Debt Securities in respect of which this Prospectus is
being delivered; and (xv) any other terms of such Debt Securities not
inconsistent with the provisions of the Indenture. (Section 3.01) Unless
otherwise indicated in the applicable Prospectus Supplement, the Indenture does
not afford the holder of any series of Debt Securities the right to tender such
Debt Securities to the Company for repurchase, or provide for any increase in
the rate or rates of interest per annum at which such Debt Securities will bear
interest, in the event the Company should become involved in a highly leveraged
transaction.
The Debt Securities may be issued under the Indenture bearing no interest or
interest at a rate below the prevailing market rate at the time of issuance, to
be offered and sold at a discount below their stated principal amount. Federal
income tax consequences and other special considerations applicable to any such
discounted Debt Securities or to other Debt Securities offered and sold at par
which are treated as having been issued at a discount for federal income tax
purposes will be described in the Prospectus Supplement relating thereto.
A substantial portion of the assets of the Company is held by subsidiaries.
The Company's right and the rights of its creditors, including the holders of
Debt Securities, to participate in the assets of any subsidiary upon its
liquidation or recapitalization would be subject to the prior claims of such
subsidiary's creditors, except to the extent that the Company may itself be a
creditor with recognized claims against such subsidiary. There is no
restriction in the Indenture against subsidiaries of the Company incurring
unsecured indebtedness.
4
<PAGE>
Unless otherwise described in the Prospectus Supplement, the Debt Securities
will be issued only in fully registered form without coupons, in denominations
of $1,000 and multiples of $1,000, and will be payable only in United States
dollars. (Section 3.02) In addition, all or a portion of the Debt Securities of
any series may be issued in permanent registered global form which will be
exchangeable for definitive Debt Securities only under certain conditions.
(Section 2.03) The Prospectus Supplement indicates the denominations to be
issued, the procedures for payment of interest and principal thereon, and other
matters. No service charge will be made for any registration of transfer or
exchange of the Debt Securities, but the Company may, in certain instances,
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. (Section 3.05)
GLOBAL SECURITIES
The Debt Securities of a particular series may be issued in the form of one
or more Global Securities which will be deposited with a Depositary, or its
nominee, each of which will be identified in the Prospectus Supplement relating
to such series. Unless and until exchanged, in whole or in part, for Debt
Securities in definitive registered form, a Global Security may not be
transferred except as a whole by the Depositary for such Global Security to a
nominee of such Depositary, by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor of such Depositary or a nominee of such successor. (Section
2.03) The specific terms of the depository arrangement with respect to any
portion of a particular series of Debt Securities to be represented by a Global
Security will be described in the Prospectus Supplement relating to such
series. The Company anticipates that the following provisions will apply to all
depository arrangements.
Upon the issuance of a Global Security, the Depositary therefor or its
nominee will credit, on its book entry and registration system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of such persons having accounts with such Depositary
("participants") as shall be designated by the underwriters or agents
participating in the distribution of such Debt Securities or by the Company if
such Debt Securities are offered and sold directly by the Company. Ownership of
beneficial interests in a Global Security will be limited to participants or
persons that may hold beneficial interests through participants. Ownership of
beneficial interests in a Global Security will be shown on, and the transfer of
such ownership will be effected only through, records maintained by the
Depositary therefor or its nominee (with respect to beneficial interests of
participants) or by participants or persons that hold through participants
(with respect to interests of persons other than participants). The laws of
some states require certain purchasers of securities to take physical delivery
thereof in definitive form. Such depository arrangements and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security or its nominee is the
registered owner thereof, such Depositary or such nominee, as the case may be,
will be considered the sole owner or holder of the Debt Securities represented
by such Global Security for all purposes under the Indenture. Except as
provided below, owners of beneficial interests in a Global Security will not be
entitled to have Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of Debt Securities of such series in definitive form and will
not be considered the owners or holders thereof under the Indenture.
Principal, premium, if any, and interest payments on a Global Security
registered in the name of a Depositary or its nominee will be made to such
Depositary or nominee, as the case may be, as the registered owner of such
Global Security. None of the Company, the Trustee or any paying agent for Debt
Securities of the series represented by such Global Security will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial interests in such Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
interests.
The Company expects that the Depositary for a Global Security or its nominee,
upon receipt of any payment of principal, premium or interest, will immediately
credit participants' accounts with payments in
5
<PAGE>
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security as shown on the records of such Depositary or
its nominee. The Company also expects that payments by participants to owners
of beneficial interests in such Global Security held through such participants
will be governed by standing instructions and customary practices, as is now
the case with securities held for the accounts of customers registered in
"street name," and will be the responsibility of such participants.
If the Depositary for a Global Security representing Debt Securities of a
particular series is at any time unwilling or unable to continue as Depositary
and a successor Depositary is not appointed by the Company within 90 days, the
Company will issue Debt Securities of such series in definitive form in
exchange for such Global Security. In addition, the Company may at any time and
in its sole discretion determine not to have the Debt Securities of a
particular series represented by one or more Global Securities and, in such
event, will issue Debt Securities of such series in definitive form in exchange
for all of the Global Securities representing Debt Securities of such series.
CERTAIN COVENANTS OF THE COMPANY
Limitation on Indebtedness Secured by a Mortgage. The Indenture provides that
neither the Company nor any Restricted Subsidiary will create, assume,
guarantee or suffer to exist any Indebtedness secured by any mortgage, pledge,
lien, security interest, conditional sale or other title retention agreement or
other similar encumbrance ("Mortgage") on any assets of the Company or a
Restricted Subsidiary unless the Company secures or causes such Restricted
Subsidiary to secure the Debt Securities equally and ratably with, or prior to,
such secured Indebtedness. This restriction will not apply to Indebtedness
secured by (i) Mortgages on the property of any corporation which Mortgages
existed at the time such corporation became a Restricted Subsidiary; (ii)
Mortgages in favor of the Company or a Restricted Subsidiary; (iii) Mortgages
on property of the Company or a Restricted Subsidiary in favor of the United
States of America or any State or political subdivision thereof, or in favor of
any other country or any political subdivision thereof, to secure payment
pursuant to any contract or statute or to secure any indebtedness incurred for
the purpose of financing all or part of the purchase price or the cost of
construction or improvement of the property subject to such Mortgages; (iv)
Mortgages on any property subsequently acquired by the Company or any
Restricted Subsidiary, contemporaneously with such acquisition or within 120
days thereafter, to secure or provide for the payment of any part of the
purchase price of such property, or Mortgages assumed by the Company or any
Restricted Subsidiary upon any property subsequently acquired by the Company or
any Restricted Subsidiary which were existing at the time of such acquisition,
provided that the amount of any Indebtedness secured by any such Mortgage
created or assumed does not exceed the cost to the Company or Restricted
Subsidiary, as the case may be, of the property covered by such Mortgage; (v)
Mortgages representing the extension, renewal or refunding of any Mortgage
referred to in the foregoing clauses (i) through (iv), inclusive; and (vi) any
other Mortgage, other than Mortgages referred to in the foregoing clauses (i)
through (v), inclusive, so long as the aggregate of all Indebtedness secured by
Mortgages pursuant to this clause (vi) and the aggregate Value of the Sale and
Lease-Back Transactions in existence at that time (not including those in
connection with which the Company has voluntarily retired funded debt as
provided in the Indenture) does not exceed 10% of Consolidated Net Tangible
Assets of the Company and its consolidated Subsidiaries. (Section 10.07)
Limitation on Sale and Lease-Back Transactions. The Indenture provides that
neither the Company nor any Subsidiary will enter into any Sale and Lease-Back
Transaction with respect to any Principal Property unless either (i) the
Company or such Subsidiary would be entitled, pursuant to the foregoing
covenant relating to "Limitation on Indebtedness Secured by a Mortgage," to
create, assume, guarantee or suffer Indebtedness in a principal amount equal to
or exceeding the Value of such Sale and Lease-Back Transaction secured by a
Mortgage on the property to be leased without equally and ratably securing the
Debt Securities or (ii) the Company, within four months after the effective
date of such transaction, applies an amount equal to the greater of (x) the net
proceeds of the sale of the property subject to the Sale and Lease-Back
Transaction and (y) the Value of such Sale and Lease-Back Transaction, to the
voluntary retirement of the Debt Securities or other unsubordinated
Indebtedness of the Company. (Section 10.08)
6
<PAGE>
Certain Definitions. A "Sale and Lease-Back Transaction" is defined in the
Indenture as the leasing by the Company or a Subsidiary for a period of more
than three years of any Principal Property which has been sold or is to be sold
or transferred by the Company or any such Subsidiary to any party (other than
the Company or a Subsidiary) to which funds have been or will be advanced by
such party on the security of the leased property. (Section 10.08)
"Value" is defined in the Indenture to mean, with respect to any particular
Sale and Lease-Back Transaction, as of any particular time, the amount equal to
the greater of (i) the net proceeds of the sale or transfer of the property
leased pursuant to such Sale and Lease-Back Transaction or (ii) the fair value
in the opinion of the Board of Directors of the Company of such property at the
time of the Company's entering into such Sale and Lease-Back Transaction,
subject to adjustment at any particular time for the length of the remaining
initial lease term. (Section 10.08)
"Principal Property" is defined in the Indenture to mean any manufacturing or
printing plant, warehouse, office building, power plant or transmission
facility owned by the Company or any Subsidiary or any property or right owned
by or granted to the Company or any Subsidiary and used or held for use in the
newspaper, newsprint, radio or television business conducted by the Company or
any Subsidiary, except for any such property or right which, in the opinion of
the Board of Directors of the Company, is not material to the total business
conducted by the Company and its Subsidiaries considered as one enterprise.
(Section 1.01)
"Indebtedness" is defined in the Indenture to mean (i) long-term liabilities
representing borrowed money and purchase money obligations as shown on the
liability side of a balance sheet (other than liabilities evidenced by
obligations under leases and contracts payable for broadcast rights), (ii)
indebtedness secured by any mortgage, pledge or lien existing on property owned
subject to such mortgage, pledge or lien, whether or not such secured
indebtedness has been assumed and (iii) contingent obligations in respect of,
or to purchase or otherwise acquire, any such indebtedness of others described
in the foregoing clauses (i) and (ii) above, including guarantees and
endorsements (other than for purposes of collection in the ordinary course of
business of any such indebtedness). (Section 10.07)
"Consolidated Net Tangible Assets" is defined in the Indenture to mean total
consolidated assets of the Company and its Consolidated Subsidiaries, less (i)
current liabilities of the Company and its Consolidated Subsidiaries; (ii)
contracts payable for broadcast rights; (iii) the net book amount of all
intangible assets of the Company and its Consolidated Subsidiaries; (iv)
appropriate amounts to account for minority interests of other persons holding
stock in Subsidiaries; and (v) investments in Subsidiaries (other than
Restricted Subsidiaries) aggregating in excess of 10% of the Net Worth of the
Company and its Consolidated Subsidiaries. (Section 10.07)
"Consolidated Subsidiary" is defined in the Indenture to mean a Subsidiary
the accounts of which are consolidated with those of the Company for public
financial reporting purposes. (Section 1.01)
"Restricted Subsidiary" is defined in the Indenture to mean each Subsidiary
of the Company as of the date of the Indenture and each Subsidiary thereafter
created or acquired, unless expressly excluded by resolution of the Board of
Directors of the Company before, or within 120 days following, such creation or
acquisition. (Section 10.07)
"Subsidiary" is defined in the Indenture to mean a corporation more than 50%
of the outstanding voting stock of which is owned, directly or indirectly, by
the Company or by one or more other Subsidiaries or by the Company and one or
more other Subsidiaries. For the purposes of this definition, "voting stock"
means stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency. (Section 1.01)
"Net Worth" is defined in the Indenture to mean the aggregate amount of
stockholders' investment as determined in accordance with generally accepted
accounting principles. (Section 10.07)
7
<PAGE>
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture provides that the Company may not consolidate with or merge
into any other corporation, or convey, transfer or lease its properties and
assets substantially as an entirety to any other party, unless (i) the
corporation formed by such consolidation or into which the Company is merged or
the party which acquires by conveyance or transfer, or which leases the
properties and assets of the Company substantially as an entirety, is organized
and existing under the laws of the United States, any State thereof or the
District of Columbia and expressly assumes the Company's obligations on the
Debt Securities and under the Indenture by means of an indenture supplemental
to the Indenture; and (ii) immediately after giving effect to such transaction
no Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be continuing;
and (iii) certain other conditions are met. (Section 8.01)
EVENTS OF DEFAULT, WAIVER AND NOTICE
With respect to the Debt Securities an Event of Default is defined in the
Indenture as being (i) default for 30 days in payment of any interest upon the
Debt Securities; (ii) default in payment of the principal of or premium, if
any, on the Debt Securities when due either at maturity or upon acceleration,
redemption or otherwise; (iii) default by the Company in the performance of any
other of the covenants or warranties in the Indenture applicable to the Company
which shall not have been remedied for a period of 60 days after Notice of
Default; and (iv) certain events of bankruptcy, insolvency or reorganization of
the Company or any Significant Subsidiary. (Section 5.01) Within 90 days after
the occurrence of any default under the Indenture, the Trustee is required to
notify the Holders of Debt Securities of any default (except in payment of
principal of or premium, if any, or interest on any Debt Securities), unless
the Board of Directors, the executive committee or a trust committee of the
Board of Directors or Responsible Officers of the Trustee in good faith
considers it in the interest of the Holders of Debt Securities not to do so.
(Section 6.02)
"Significant Subsidiary" is defined in the Indenture to mean any Subsidiary
(i) which, as of the close of the fiscal year of the Company immediately
preceding the date of determination, contributed more than 7% of the
consolidated gross operating revenues of the Company and its Subsidiaries for
such year or (ii) the Net Worth of which (determined in a manner consistent
with the manner of determining consolidated Net Worth of the Company and its
Subsidiaries) as of the close of such immediately preceding fiscal year
exceeded 7% of the consolidated Net Worth of the Company and its Subsidiaries.
(Section 5.01)
The Indenture provides that if an Event of Default with respect to Debt
Securities shall have occurred and be continuing, either the Trustee or the
Holders of at least 25% in aggregate principal amount of the Debt Securities
then outstanding may declare the entire principal and accrued interest of all
Debt Securities to be due and payable immediately. However, any time after a
declaration of acceleration with respect to the Debt Securities has been made,
but before a judgment or decree for the payment of money based on such
acceleration has been obtained by the Trustee, the Holders of a majority in
principal amount of the Outstanding Debt Securities, may, under certain
circumstances, rescind and annul such acceleration. The Holders of a majority
in principal amount of the Outstanding Debt Securities may waive any past
defaults under the Indenture with respect to the Debt Securities, except
defaults in payment of principal of or premium, if any (other than by a
declaration of acceleration), or interest on the Debt Securities or covenants
that may not be modified or amended without the consent of the Holders of all
Outstanding Debt Securities. (Sections 5.02 and 5.13)
The Company will be required to furnish to the Trustee annually a statement
as to the performance by the Company of its covenants and agreements under the
Indenture. (Section 10.09)
Subject to certain conditions set forth in the Indenture, the Holders of a
majority in principal amount of the then Outstanding Debt Securities shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee under the Indenture in respect of such
series. No
8
<PAGE>
Holder of any Debt Securities shall have any right to institute any
proceedings, judicial or otherwise, with respect to the Indenture or any remedy
thereunder unless, among other things, the Holder or Holders of Debt Securities
shall have offered to the Trustee reasonable indemnity against costs, expenses
and liabilities relating to such proceedings. (Sections 5.12 and 5.07)
MODIFICATION OF THE INDENTURE
With respect to the Debt Securities, modification or amendment of the
Indenture may be made by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Debt Securities,
except that no such modification or amendment may, without the consent of the
Holders of all then Outstanding Debt Securities (i) change the due date of the
principal of, or any installment of principal of or interest on, any Debt
Securities; (ii) reduce the principal amount of, or rate of interest on, or any
premium payable on redemption of any Debt Securities; (iii) reduce the
principal amount of any Debt Securities payable upon acceleration of the
maturity thereof; (iv) change the place or the currency of payment of principal
of, or any premium or interest on, any Debt Securities; (v) impair the right to
institute suit for the enforcement of any payment on or with respect to any
Debt Securities on or after the due date thereof (or, in the case of
redemption, on or after the redemption date thereof); (vi) reduce the
percentage in principal amount of Debt Securities then outstanding, the consent
of whose holders is required for modification or amendment of the Indenture or
for waiver of compliance with certain provisions of the Indenture or for waiver
of certain defaults; or (vii) modify certain provisions of the Indenture
regarding the amendment or modification of, or waiver with respect to, any
provision of the Indenture or the Debt Securities. (Section 9.02)
DEFEASANCE
If provision is made pursuant to Section 3.01 of the Indenture for the
defeasance of a series of Debt Securities, and if such series is payable only
in United States dollars (unless otherwise specifically provided), the Company,
at its option, in respect of such series of Debt Securities (i) will be
discharged from any and all obligations in respect of such Debt Securities
(except for certain obligations to register the transfer or exchange of Debt
Securities, replace stolen, lost or mutilated Debt Securities, maintain paying
agencies and hold moneys for payment in trust and obligations with respect to
subordination) or (ii) will not be subject to provisions of the Indenture
described above under "Consolidation, Merger and Sale of Assets," "Limitation
on Indebtedness Secured by a Mortgage," and "Limitation on Sale and Lease-Back
Transactions" if the Company deposits with the Trustee, in trust, money or U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money in an
amount sufficient to pay all the principal of, and interest on, such Debt
Securities on the dates such payments are due in accordance with the terms of
such Debt Securities. To exercise any such option, the Company is required to
deliver to the Trustee (x) an opinion of a nationally recognized tax counsel to
the effect that the deposit and related defeasance would not cause the holders
of the Debt Securities to recognize income, gain or loss for federal income tax
purposes as a result of the Company's exercise of its option and (y) if the
Debt Securities are then listed on the New York Stock Exchange (the "NYSE"), an
opinion of counsel to the effect that the Debt Securities would not be delisted
from the NYSE as a result of the exercise of such option. (Sections 13.01 and
13.02)
THE TRUSTEE
First Trust of Illinois, National Association is the Trustee under the
Indenture. The Trustee is a depository for funds of and performs other services
for and transacts other banking business with the Company in the normal course
of business. The Trustee also acts as trustee under (i) the indenture relating
to the Company's Medium-Term Notes, Series B, $122,300,000 aggregate principal
amount of which were outstanding as of March 31, 1996 and (ii) the Indenture
pursuant to which there were $253,000,000 aggregate principal amount of the
Company's Medium-Term Notes, Series C outstanding as of March 31, 1996.
9
<PAGE>
DESCRIPTION OF WARRANTS
The following description of the terms of the Warrants sets forth certain
general terms and provisions of the Warrants to which any Prospectus Supplement
may relate. The particular terms of the Warrants offered by any Prospectus
Supplement and the extent, if any, to which such general provisions may apply
to the Warrants so offered will be described in the Prospectus Supplement
relating to such Warrants.
GENERAL
Warrants may be offered together with any series of Debt Securities offered
by a Prospectus Supplement and if so offered will be attached to such Debt
Securities and will entitle the holder thereof to purchase additional Debt
Securities having the same terms and interest rate as the offered Debt
Securities. Each series of Warrants will be issued under a separate warrant
agreement (a "Warrant Agreement") to be entered into between the Company and a
bank or trust company, as warrant agent (the "Warrant Agent"), all as described
in the Prospectus Supplement relating to such series of Warrants. The Warrant
Agent will act solely as the agent of the Company under the applicable Warrant
Agreement and in connection with the certificates for the Warrants (the
"Warrant Certificates") of such series, and will not assume any obligation or
relationship of agency or trust for or with any holders of such Warrant
Certificates or beneficial owners of Warrants. A copy of the form of Warrant
Agreement, including the form of Warrant Certificates, is filed as an exhibit
to the Registration Statement. The following summary of certain provisions of
the forms of Warrant Agreement and Warrant Certificates does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all the provisions of the Warrant Agreement and the Warrant Certificates.
Reference is hereby made to the Prospectus Supplement relating to the
particular series of Warrants, if any, offered thereby for the terms of such
Warrants, including, where applicable: (i) the offering price; (ii) the
currency or currencies in which such Warrants are being offered; (iii) the
designation, aggregate principal amount, currency or currencies, denominations
and other terms of the series of Debt Securities purchasable upon exercise of
such Warrants; (iv) the designation and terms of the series of Debt Securities
with which such Warrants are being offered and the number of such Warrants
being offered with each such Debt Security; (v) the date on and after which
such Warrants and the related series of Debt Securities will be transferable
separately; (vi) the principal amount of the Debt Securities purchasable upon
exercise of each such Warrant and the price at which and currency or currencies
in which such principal amount of Debt Securities may be purchased upon such
exercise; (vii) the date on which the right to exercise such Warrants shall
commence (the "Exercise Date") and the date on which such right shall expire
(the "Expiration Date"); and (viii) any other terms of such Warrants not
inconsistent with the applicable Warrant Agreement.
Warrants of any series will be exchangeable into Warrants of the same series
representing in the aggregate the number of Warrants surrendered for exchange.
Warrant Certificates may be presented for exchange or transfer at the corporate
trust office of the Warrant Agent for such series of Warrants (or any other
office indicated in the Prospectus Supplement relating to such series of
Warrants). Prior to the exercise of their Warrants, holders of Warrants will
not have any of the rights of holders of the series of Debt Securities
purchasable upon such exercise, including the right to receive payments of
principal of, premium, if any, or interest, if any, on the Debt Securities
purchasable upon such exercise, or to enforce any of the covenants in the
Indenture.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder thereof to purchase such principal
amount of the related series of Debt Securities at such exercise price as shall
in each case be set forth in, or calculable as set forth in, the Prospectus
Supplement relating to such Warrant. Warrants of a series may be exercised at
the corporate trust office of the Warrant Agent for such series (or any other
office indicated in the Prospectus Supplement relating to such series) at any
time on or after the Exercise Date and prior to 5:00 P.M., Chicago time (unless
otherwise indicated in the related Prospectus Supplement), on the Expiration
Date set forth in the Prospectus
10
<PAGE>
Supplement relating to such series of Warrants. After the close of business on
the Expiration Date relating to such series of Warrants, unexercised Warrants
of such series will be void.
Warrants of a series may be exercised by delivery to the appropriate Warrant
Agent of payment, as provided in the Prospectus Supplement relating to such
series of Warrants, of the consideration required to purchase the principal
amount of the series of Debt Securities purchasable upon such exercise,
together with certain information as set forth on the reverse side of the
Warrant Certificate evidencing such Warrants. Such Warrants will be deemed to
have been exercised upon receipt of the exercise price, subject to the receipt
of the Warrant Certificate evidencing such Warrants within five business days.
Upon receipt of such payment and such Warrant Certificate, properly completed
and duly executed, at the corporate trust office of the appropriate Warrant
Agent (or any other office indicated in the Prospectus Supplement relating to
such series of Warrants), the Company will, as soon as practicable, issue and
deliver the principal amount of the series of Debt Securities purchasable upon
such exercise. If fewer than all of the Warrants represented by a Warrant
Certificate are exercised, a new Warrant Certificate will be issued and
delivered for the remaining amounts of Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Securities in any of three ways: (i) to or through
underwriters or dealers, (ii) through agents or (iii) directly to one or more
purchasers. With respect to each series of Securities being offered hereby, the
terms of the offering of the Securities of such series, including the name or
names of any underwriters or agents, the purchase price of such Securities and
the proceeds to the Company from such sale, any underwriting discounts, selling
commissions and other items constituting underwriters', dealers' or agents'
compensation, any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers or agents, and any
securities exchanges on which the Securities of such series may be listed, will
be set forth in, or may be calculated from the information set forth in, the
Prospectus Supplement. Only underwriters so named in the Prospectus Supplement
are deemed to be underwriters in connection with the Securities offered
thereby.
If underwriters are used in the sale, the Securities will be acquired by the
underwriters for their own account and may be resold from time to time in one
or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
Securities may be offered to the public either through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate.
Unless otherwise set forth in the Prospectus Supplement, the obligations of the
underwriters to purchase Securities will be subject to certain conditions
precedent and the underwriters will be obligated to purchase all the securities
offered by the Prospectus Supplement if any of such Securities are purchased.
Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Securities may also be sold directly by the Company or through agents (who
may also act as principals) designated by the Company from time to time. Any
agent involved in the offer or sale of the Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth in, or may be calculated from the
information set forth in, the Prospectus Supplement. Unless otherwise indicated
in the Prospectus Supplement, any such agent will be acting on a best efforts
basis for the period of its appointment. In the case of sales made directly by
the Company, no commission will be payable.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase Securities from the Company at the public offering
price set forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a future date specified in the
Prospectus Supplement. Such contracts will be subject to the
11
<PAGE>
conditions set forth in the Prospectus Supplement, and the Prospectus
Supplement will set forth the commissions payable for solicitation of such
contracts.
Agents and underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act of 1933, as
amended, or to contribution with respect to payments which the agents or
underwriters may be required to make in respect thereof. Agents and
underwriters may be customers of, engage in transactions with, or perform
services for the Company or its affiliates in the ordinary course of business.
In the event that the Securities of any series are not listed on a national
securities exchange, certain broker-dealers may make a market in the Securities
of such series, but will not be obligated to do so and may discontinue any
market making at any time without notice. No assurance can be given that any
broker-dealer will make a market in the Securities or as to the liquidity of
the trading market for the Securities. The Prospectus Supplement with respect
to the Securities of any series will state, if known, whether or not any
broker-dealer intends to make a market in such Securities. If no such
determination has been made, the Prospectus Supplement will so state.
LEGAL MATTERS
Certain legal matters relating to the Securities will be passed upon for the
Company by Sidley & Austin, Chicago, Illinois, and for the underwriters and
agents, if any, by Mayer, Brown & Platt. Newton N. Minow, a director of the
Company, is Counsel to Sidley & Austin. As of March 1, 1996, Mr. Minow
beneficially owned 6,500 shares of Common Stock of the Company and held options
(exercisable within 60 days) to purchase 1,000 shares of Common Stock of the
Company.
EXPERTS
The financial statements incorporated in this Prospectus by reference to the
Annual Report on Form 10-K of Tribune Company for the year ended December 31,
1995 have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
12
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTIONS.*
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............. $172,414
Accounting fees................................................. 50,000
Trustee's fees and expenses..................................... 2,500
Blue sky fees and expenses...................................... 10,000
Printing, distribution, and engraving fees...................... 75,000
Rating agency fees.............................................. 130,000
Legal fees and expenses......................................... 60,000
Miscellaneous................................................... 10,000
--------
Total....................................................... $509,914
========
</TABLE>
- --------
*All amounts are estimated except for the Securities and Exchange Commission
registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Certain provisions of the General Corporation Law of the State of Delaware
(the "DGCL") provide that the Company may indemnify the directors and officers
of the Company and affiliated companies against liabilities and expenses
incurred by reason of the fact that such persons were serving in such
capacities, subject to certain limitations and conditions set forth in the
statute. Article TWELFTH of the Company's Restated Certificate of Incorporation
provides that the Company shall indemnify its directors and officers to the
fullest extent permitted by Delaware law. In accordance with Section 102(b)(7)
of the DGCL, the Company's Restated Certificate of Incorporation provides that
no directors of the Company shall be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director
except for (i) breach of the director's duty of loyalty to the Company or its
stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) unlawful payment of
dividends under Section 174 of the DGCL or (iv) transactions from which the
director derives an improper personal benefit.
Pursuant to Section 145 of the DGCL and the Company's Restated Certificate of
Incorporation, the directors and officers of the Company are covered by
Directors and Officers Liability and Corporation Reimbursement insurance
policies.
Reference is made to Section 7 of the form of Underwriting Agreement (filed
as Exhibit 1.1 to this Registration Statement) and Section 8 of the form of
Selling Agency Agreement (filed as Exhibit 1.2 to this Registration Statement),
which provide for indemnification of directors and officers of the Company
against certain liabilities, including liabilities under the Securities Act of
1933, in certain circumstances.
II-1
<PAGE>
ITEM 16. EXHIBITS.
Exhibits marked with an asterisk (*) are incorporated by reference to
documents previously filed by Tribune Company with the Securities and Exchange
Commission, as indicated. All other documents listed are filed with this
Registration Statement.
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<C> <S>
1.1 Form of proposed Underwriting Agreement.
1.2 Form of proposed Selling Agency Agreement.
4.1 Indenture dated as of March 1, 1992 between Tribune Company and
First Trust of Illinois, National Association, as successor
trustee (successor to Continental Bank, National Association).
4.2 Forms of proposed Debt Securities.
*4.3 Forms of proposed Warrant Agreement and Warrant Certificates
(incorporated by reference to Exhibit 4.3 to the Company's
Registration Statement on Form S-3, File No. 33-45793).
5 Opinion of Sidley & Austin.
*12 Statement of Computation of Ratios of Earnings to Fixed Charges
(incorporated by reference to Exhibit 12 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995,
File No. 1-8572).
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Sidley & Austin (included in Exhibit 5).
24 Powers of Attorney (contained in the Signatures page to this
Registration Statement).
25 Form T-1 Statement of Eligibility of First Trust of Illinois,
National Association, under the Trust Indenture Act of 1939.
</TABLE>
ITEM 17. UNDERTAKINGS.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, 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 a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 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.
II-2
<PAGE>
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described 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>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing this Registration Statement 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 April 25, 1996.
Tribune Company
John W. Madigan
By: _________________________________
John W. Madigan
Chairman, President and Chief
Executive Officer
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints John W. Madigan and James C. Dowdle, and each of them,
his or her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this Registration
Statement, including any filings under Rule 462 promulgated under the
Securities Act of 1933, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto 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 as 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, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated on April 25, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
John W. Madigan
- -------------------------------------------
John W. Madigan Chairman, President and Chief Executive
Officer and Director
(principal executive officer)
James C. Dowdle
- -------------------------------------------
James C. Dowdle Executive Vice President and Director
Donald C. Grenesko
- -------------------------------------------
Donald C. Grenesko Senior Vice President and Chief
Financial Officer
(principal financial officer)
R. Mark Mallory
- -------------------------------------------
R. Mark Mallory Vice President and Controller
(principal accounting officer)
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
Charles T. Brumback
- -------------------------------------------
Charles T. Brumback Director
- -------------------------------------------
Stanton R. Cook Director
- -------------------------------------------
Diego E. Hernandez Director
- -------------------------------------------
Robert E. La Blanc Director
- -------------------------------------------
Nancy Hicks Maynard Director
Andrew J. McKenna
- -------------------------------------------
Andrew J. McKenna Director
- -------------------------------------------
Kristie Miller Director
Newton N. Minow
- -------------------------------------------
Newton N. Minow Director
James J. O'Connor
- -------------------------------------------
James J. O'Connor Director
Donald H. Rumsfeld
- -------------------------------------------
Donald H. Rumsfeld Director
Arnold R. Weber
- -------------------------------------------
Arnold R. Weber Director
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
------- --------------------
<C> <S>
1.1 Form of proposed Underwriting Agreement.
1.2 Form of proposed Selling Agency Agreement.
4.1 Indenture dated as of March 1, 1992 between Tribune Company and First
Trust of Illinois, National Association, as successor trustee
(successor to Continental Bank, National Association).
4.2 Forms of proposed Debt Securities.
4.3 Forms of proposed Warrant Agreement and Warrant Certificates
(incorporated by reference to Exhibit 4.3 to the Company's
Registration Statement on Form S-3, File No. 33-45793).
5 Opinion of Sidley & Austin.
12 Statement of Computation of Ratios of Earnings to Fixed Charges
(incorporated by reference to Exhibit 12 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995, File
No. 1-8572).
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Sidley & Austin (included in Exhibit 5).
24 Powers of Attorney (contained in the Signatures page to this
Registration Statement).
25 Form T-1 Statement of Eligibility of First Trust of Illinois, National
Association, under the Trust Indenture Act of 1939.
</TABLE>
<PAGE>
TRIBUNE COMPANY
Underwriting Agreement
----------------------
Chicago, Illinois
[Identity and Address
of Representatives]
Dear Sirs:
Tribune Company, a Delaware corporation (the "Company"), proposes to sell
to the underwriters named in Schedule II hereto (the "Underwriters"), for whom
you are acting as representatives (the "Representatives"), the principal amount
of its securities identified in Schedule I hereto [1: (the "Securities")] [2:
(the "Purchased Debt Securities")]/1/, to be issued under an indenture dated as
of March 1, 1992, between the Company and First Trust of Illinois, National
Association, as successor trustee (the "Trustee"), as supplemented to the date
hereof (the "Indenture") [2: and the Company's warrants identified in Schedule
I hereto (the "Warrants") to be issued under a warrant agreement to be dated as
of ____________, 19___, between the Company and ______________________________,
as warrant agent (the "Warrant Agreement"), which Warrants shall be exercisable
to purchase the additional securities identified in Schedule I hereto, which
securities shall have the same terms and interest rate as the Purchased Debt
Securities (the "Warrant Debt Securities") to be issued under the Indenture.
Each _____________ principal amount of the Purchased Debt Securities and
_______________ Warrant[s] are hereinafter called a "Unit", and the Units and
the Warrant Debt Securities are hereinafter called the "Securities"]. If the
firm or firms listed in Schedule II hereto include only the firm or firms listed
as the Representatives in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, each Underwriter that:
- --------------------
/1/ Bracketed language should be inserted as follows:
1: If only debt securities are to be sold; and
2: If debt securities and warrants are to be sold together in Units.
<PAGE>
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in Schedule I
hereto), which has become effective, for the registration under the Act of
the Securities. Such registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the
Act and complies in all other material respects with said Rule. The Company
proposes to file with the Commission pursuant to Rule 424 under the Act a
supplement to the form of prospectus included in such registration
statement relating to the Securities and the plan of distribution thereof
and has previously advised you of all further information (financial and
other) with respect to the Company to be set forth therein. Such
registration statement, including the exhibits thereto, as amended at the
date of this Agreement is hereinafter called the "Registration Statement";
such prospectus in the form in which it appears in the Registration
Statement is hereinafter called the "Basic Prospectus"; and such
supplemented form of prospectus, in the form in which it shall be filed
with the Commission pursuant to Rule 424 (including the Basic Prospectus as
so supplemented) is hereinafter called the "Final Prospectus". Any
preliminary form of the Final Prospectus, which has heretofore been filed
pursuant to Rule 424 is hereinafter called the "Preliminary Final
Prospectus." Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment"
or "supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, deemed to be incorporated therein by reference.
(b) (i) As of the date hereof, (ii) when the Final Prospectus is first
filed or transmitted for filing pursuant to Rule 424 under the Act, (iii)
when, prior to the Closing Date (as hereinafter defined in Section 3), any
amendment to the Registration Statement becomes effective (including the
filing of any document incorporated by reference in the Registration
Statement), (iv) when any supplement to the Final Prospectus is filed with
the Commission and (v) at the Closing Date: (x) the Registration Statement,
as amended as of any such time, and the Final Prospectus, as amended or
supplemented as of any such time, and the Indenture will comply in all
material respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
Exchange Act and the respective rules thereunder, (y) the Registration
Statement, as amended as of any such time, will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein
-2-
<PAGE>
or necessary in order to make the statements therein not misleading and (z)
the Final Prospectus, as amended or supplemented as of any such time, will
not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to (x)
that part of the Registration Statement which shall constitute the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of the
Trustee or (y) any information contained in or omitted from the
Registration Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final Prospectus.
(c) As of the date hereof and at the Closing Date:
(i) each of the Company and Chicago Tribune Company, Sentinel
Communications Company, Sun-Sentinel Company and Tribune Broadcasting
Company (individually, a "Designated Subsidiary" and collectively, the
"Designated Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Basic Prospectus (as of the date hereof)
or the Final Prospectus (as of the Closing Date), and is duly
qualified or licensed to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction where the
character of the properties owned or leased or the nature of the
activities conducted by such corporations, respectively, makes such
qualifications or licensing necessary, and where the failure to be so
qualified or licensed might materially adversely affect the financial
condition, assets, operations or prospects of the Company and its
subsidiaries considered as one enterprise;
(ii) all the outstanding shares of capital stock of each
Designated Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise set
forth in the Basic Prospectus (as of the date hereof) or the Final
Prospectus (as of the Closing Date), all outstanding shares of capital
stock of the Designated Subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any
perfected security interest and any other security interests, claims,
liens or encumbrances;
(iii) the Indenture has been duly authorized, executed and
delivered and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms (subject,
as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
-3-
<PAGE>
creditors' rights generally from time to time in effect and to general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law)); the Indenture has
been duly qualified under the Trust Indenture Act; and the [1:
Securities] [2: Units] have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the purchasers thereof, will
constitute legal, valid and binding obligations of the Company, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws of general applicability
relating to or affecting the enforcement of creditor's rights or by
the effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law) and
will be entitled to the benefits of the Indenture;
(iv) the financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Basic
Prospectus (as of the date hereof) or the Final Prospectus (as of the
Closing Date) present fairly the financial position of the Company and
such consolidated subsidiaries as at the dates indicated and the
results of their operations for the periods specified; except as
stated therein, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis;
(v) to the best knowledge of the Company, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any of the Designated Subsidiaries of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Basic Prospectus (as of the date hereof) or the Final
Prospectus (as of the Closing Date), and there is no franchise,
contract or other document of a character required to be described in
the Registration Statement or Basic Prospectus (as of the date hereof)
or the Final Prospectus (as of the Closing Date), or to be filed as an
exhibit, which is not described or filed as required;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) no consent, approval, authorization or order of any court
or governmental agency or body, domestic or foreign, is required for
the consummation of the transactions contemplated herein except such
as have been obtained under the Act and such as may be obtained under
the blue sky laws of any jurisdiction in connection with the sale of
the [1: Securities] [2: Notes] as contemplated by this Agreement and
such other approvals as have been obtained; and
-4-
<PAGE>
(viii) none of the execution of the Indenture, the issuance and
sale of the [1: Securities] [2: Notes], the consummation of any other
of the transactions herein contemplated or the fulfillment of the
terms hereof will conflict with, result in a breach of, or constitute
a default under the charter or by-laws of the Company or the terms of
any indenture or other agreement or instrument to which the Company or
any of the Designated Subsidiaries is a party or bound, or any order,
decree, rule or regulation known to the Company to be applicable to
the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator, domestic or
foreign, having jurisdiction over the Company or any of its
subsidiaries.
(d) The Company confirms as of the date hereof, and at the Closing
Date, that the Company is in compliance with all provisions of Section 1 of
Laws of Florida, Chapter 92-198, An Act Relating to Disclosure of Doing
Business with Cuba, and the Company further agrees that if it commences
engaging in business with the government of Cuba or with any person or
affiliate located in Cuba after the date the Registration Statement becomes
or has become effective with the Commission or with the Florida Department
of Banking and Finance (the "Department"), whichever date is later, or if
the information reported in the Basic, Preliminary Final or the Final
Prospectus, if any, concerning the Company's business with Cuba or with any
person or affiliate located in Cuba changes in any material way, the
Company will provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the [1: principal amount of the Securities] [2: number of
Units] set forth opposite such Underwriter's name in Schedule II hereto except
that, if Schedule I hereto provides for the sale of [1: Securities] [2: Units]
pursuant to delayed delivery arrangements, the respective [1: principal amounts
of Securities] [2: numbers of Units] to be purchased by the Underwriters shall
be as set forth in Schedule II hereto less the respective amounts of Contract
Securities determined as provided below. [1: Securities] [2: Units] to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and [1: Securities] [2: Units] to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities".
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase [1: Securities] [2: Units] from the Company pursuant
to delayed delivery contracts ("Delayed Delivery Contracts"), substantially in
the form of Schedule III hereto but with such changes therein as the Company may
authorize or approve. The Underwriters will endeavor to make such arrangements
and, as compensation therefor, the Company will pay to the Representatives, for
the account of the Underwriters, on the Closing Date, the percentage set forth
in Schedule I hereto of the [1: principal amount of the Securities] [2: number
of units] for
-5-
<PAGE>
which Delayed Delivery Contracts are made. Delayed Delivery Contracts are to be
with institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum [1:
principal amount] [2: number] set forth in Schedule I hereto and the [1:
aggregate principal amount] [2: number] of Contract Securities may not exceed
the maximum aggregate [1: principal amount] [2: number] set forth in Schedule I
hereto. The Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts. The [1: principal amount
of Securities] [2: number of Units] to be purchased by each Underwriter as set
forth in Schedule II hereto shall be reduced by an amount which shall bear the
same proportion to the total [1: principal amount] [2: number] of Contract
Securities as the [1: principal amount of Securities] [2: number of Units] set
forth opposite the name of such Underwriter bears to the aggregate [1: principal
amount] [2: number] set forth in Schedule II hereto, except to the extent that
you as Representatives determine that such reduction shall be otherwise than in
such proportion and so advise the Company in writing; provided, however, that
the total [1: principal amount of Securities] [2: number of Units] to be
purchased by all Underwriters shall be the aggregate [1: principal amount] [2:
number] set forth in Schedule II hereto less the aggregate principal amount of
Contract Securities.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Underwriters'
Securities shall be made at the location, in the currency, on the date and at
the time specified in Schedule I hereto (or such later date not later than five
business days after such specified date as the Representatives shall designate),
which date and time may be postponed by agreement between the Representatives
and the Company as provided in Section 8 hereof (such date and time of delivery
and payment for the Underwriters' Securities being herein called the "Closing
Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by certified or official bank
check or checks payable in Chicago Clearing House (next day) funds. Certificates
for the Underwriters' Securities shall be registered in such names and in such
denominations as the Representatives may request not less than three full
business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 p.m. on the business day prior to the Closing Date, except
as otherwise provided in Schedule I hereto.
4. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the [1: Securities]
[2: Units], the Company will not file any amendment of the Registration
Statement or supplement
-6-
<PAGE>
(including the Final Prospectus) to the Basic Prospectus [2: , and prior to
the exercise or expiration of all the Warrants, the Company will not file
any such amendment or supplement relating to the Warrant Debt Securities,]
unless the Company has furnished to the Representatives for their review a
copy thereof prior to filing. Subject to the foregoing sentence, the
Company will cause the Final Prospectus to be filed (or transmitted for
filing) with the Commission pursuant to Rule 424. The Company will promptly
advise the Representatives (i) when the Final Prospectus shall have been
filed (or transmitted for filing) with the Commission pursuant to Rule 424,
(ii) when any amendment to the Registration Statement relating to the
Securities shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment of
or supplement to the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of [2: any of] the Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend or supplement the Final Prospectus to comply with the Act, the
Exchange Act or the Trust Indenture Act or the respective rules thereunder,
the Company promptly will prepare and file with the Commission, subject to
the first sentence of subparagraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements (which need not be audited) of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule 158
under the Act.
(d) The Company will furnish to each of the Representatives and to
counsel for the Underwriters, without charge, one signed copy of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and each amendment thereto which shall become effective
on or prior to the Closing Date and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Act, as many copies of each
Preliminary Final Prospectus and the Final Prospectus and any amendments
thereof and
-7-
<PAGE>
supplements thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing all documents relating to the
offering.
(e) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the representatives may
designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities, will arrange for the determination
of the legality of the Securities for purchase by institutional investors
and will pay the fee of the National Association of Securities Dealers,
Inc., if any, in connection with its review of the offering; provided,
however, that the Company shall not be required to effect or maintain any
such qualification in any jurisdiction that would result in it having to
execute or file a general consent to service of process under the laws of
such jurisdiction or to qualify to do business as a foreign corporation in
such jurisdiction.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer, sell or
contract to sell, or announce the offering of, any debt securities or
warrants to purchase debt securities covered by the Registration Statement
or any other registration statement filed under the Act.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
the Final Prospectus shall have been filed or transmitted for filing with
the Commission pursuant to Rule 424 not later than 5:00 p.m., New York City
time, on the business day following the date hereof.
(b) The Company shall have furnished to the Representatives the
opinion of Sidley & Austin, special counsel for the Company, dated the
Closing Date, to the effect that:
(i) each of the Company and the Designated Subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered
or organized, with full corporation power and authority to own its
properties and conduct its business as described in the Final
Prospectus;
-8-
<PAGE>
(ii) all the outstanding shares of capital stock of each
Designated Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and, to the knowledge of such
counsel, except as otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of the Designated Subsidiaries are
owned by the Company either directly or through wholly owned
subsidiaries free and clear of any security interests, claims, liens
or encumbrances;
(iii) the Securities and the Indenture conform in all material
respects to the description thereof contained in the Final Prospectus;
the holders of outstanding shares of capital stock of the Company are
not entitled to rights to subscribe for the Securities;
(iv) the Indenture [2: and the Warrant Agreement] has [2: have]
been duly authorized, executed and delivered by the Company, and
constitute[s a] legal, valid and binding instrument[s] enforceable
against the Company in accordance with [1: its] [2: their] terms
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws of general
applicability relating to or affecting the enforcement of creditors'
rights or by the effect of general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at
law); the Indenture has been duly qualified under the Trust Indenture
Act; and the Securities have been duly authorized and, when executed
and authenticated [2: or countersigned] in accordance with the
provisions of the Indenture [2: or the Warrant Agreement, as the case
may be,] and the procedures adopted by the Special Committee thereof
and delivered to and paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwriters' Securities, or by the
purchasers thereof pursuant to Delayed Delivery Contracts, in the case
of any Contract Securities, [2: or by the purchasers thereof pursuant
to the Warrant Agreement, in the case of the Warrant Debt Securities]
will constitute legal, valid and binding obligations of the Company
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws of general
applicability relating to or affecting the enforcement of creditors'
rights or by the effect of general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at
law) and will be entitled to the benefits of the Indenture [2: or the
Warrant Agreement, as the case may be];
(v) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any of its Designated Subsidiaries of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no franchise, contract
or other document of a character required to be described in the
Registration
-9-
<PAGE>
Statement or Final Prospectus, or to be filed as an exhibit to the
Registration Statement, which is not described or filed as required;
and the statements included or incorporated in the Final Prospectus
with respect to any such action, suit, proceeding, franchise, contract
or other document fairly summarize the matters required to be
disclosed or described;
(vi) the Registration Statement and any amendments thereto have
become effective under the Act; to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued, no proceedings for that
purpose have been instituted or threatened; the Registration
Statement, the Final Prospectus and each amendment thereof or
supplement thereto as of their respective effective or issue dates
(other than the financial statements, financial data, statistical data
and supporting schedules included or incorporated by reference
therein, as to which such counsel need express no opinion) complied as
to form in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder; and
although such counsel has not independently verified, is not passing
upon and assumes no responsibility for the accuracy, completeness or
fairness of statements contained in the Registration Statement or any
amendment thereof or the Final Prospectus or any amendment or
supplement thereof, except as noted above, nor has such counsel
verified the computation or compilation of financial statements and
other financial data, nothing has come to such counsel's attention
which causes such counsel to believe that the Registration Statement
or any amendment thereof (other than the financial statements,
financial data, statistical data and supporting schedules, as to which
such counsel need express no belief), at the time it became effective
and at the date of this Agreement, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or supplemented
(other than the financial statements, financial data, statistical data
and supporting schedules, as to which such counsel need express no
belief), at the Closing Date, includes any untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(vii) this Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company;
(viii) no consent, approval, authorization or order of any court
or governmental agency or body, domestic or foreign, is required for
the consummation of the transactions contemplated herein or in any
Delayed Delivery Contracts except such as have been obtained under the
Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the
-10-
<PAGE>
purchase and distribution of the Securities by the Underwriters and
such other approvals (specified in such opinion) as have been
obtained;
(ix) neither the execution of the Indenture, the issuance and
sale of the Securities, nor the consummation of any other of the
transactions herein contemplated or the fulfillment of the terms
hereof or of any Delayed Delivery Contracts will result in a breach
of, or constitute a default under, the charter or by-laws of the
Company or the terms of any indenture or other material agreement or
instrument known to such counsel and to which the Company or any of
its Designated Subsidiaries is a party or bound, or any order, decree,
rule or regulation known to such counsel to be applicable to the
Company or any of its Designated Subsidiaries of any court, regulatory
body, administrative agency, governmental body or arbitrator, domestic
or foreign, having jurisdiction over the Company or any of its
Designated Subsidiaries;
(x) no holders of outstanding securities of the Company have
rights to the registration of such securities under the Registration
Statement; and
(xi) if the Securities are to be listed on any stock exchange,
authorization therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the Company has
filed a preliminary listing application and all required supporting
documents with respect to the Securities with such stock exchange and
such counsel has no reason to believe that the Securities will not be
authorized for listing, subject to official notice of issuance and
evidence of satisfactory distribution.
Such counsel may limit its opinion to matters involving the
application of the laws of the State of Illinois or the United States or
the General Corporation Law of the State of Delaware and, in rendering such
opinion, may rely as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public officials.
(c) The Representatives shall have received from Mayer, Brown &
Platt , counsel for the Underwriters, such opinions, dated the Closing
Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus [2: , the Warrant Agreement] and other related matters as
the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board, the
President or any Vice President and by the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect
that the signers of such certificate have carefully examined the
Registration
-11-
<PAGE>
Statement, the Final Prospectus, the Indenture [2: , the Warrant Agreement]
and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus.
(e) At the Closing Date, Price Waterhouse shall have furnished to the
Representatives a letter or letters, dated as of the Closing Date, in form
and substance satisfactory to the Representatives and Price Waterhouse,
confirming that they are independent accountants with respect to Tribune
Company within the meaning of the Act and the applicable published rules
and regulations thereunder, and stating in effect that:
(i) in their opinion, the consolidated financial statements
(including financial schedules) of the Company and its subsidiaries
examined by and reported on by them and included or incorporated by
reference in the Registration Statement and the Final Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations thereunder with respect to
registration statements on Form S-3;
(ii) on the basis of procedures of review in accordance with
standards established by the American Institute of Certified Public
Accountants (but not an audit in accordance with generally accepted
auditing standards) consisting of:
(a) reading the minutes of meetings of stockholders and the
Board of Directors of the Company as set forth in the minute
books through a specified date not more than five business days
prior to the date of delivery of such letter;
-12-
<PAGE>
(b) reading the latest available unaudited interim
consolidated financial data of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement or the Final Prospectus and the latest
unaudited interim financial data made available by the Company
and its subsidiaries; and
(c) making inquiries of certain officials of the Company who
have responsibilities for financial and accounting matters
regarding the specific items for which representations are
requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) the unaudited interim consolidated financial data of the
Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act
and the Exchange Act and the related published rules and
regulations thereunder;
(2) any material modifications should be made to said
unaudited consolidated financial data of the Company and its
consolidated subsidiaries for it to be in conformity with
generally accepted accounting principles;
(3)(a) with respect to the period subsequent to the date of
the most recent financial statements (other than any capsule
information), audited or unaudited, included or incorporated by
reference in the Registration Statement and the Final Prospectus,
at the date of the latest available interim financial data and at
a specified date not more than five business days prior to the
date of delivery of such letter, except as otherwise disclosed in
the Final Prospectus or incorporated by reference and except when
such data is not prepared by or available from the Company, there
was any change in the common stock or long-term debt of the
Company and its consolidated subsidiaries or any decreases in
consolidated total assets, net current assets (working capital)
or stockholders' investment as compared with amounts shown in the
latest consolidated balance sheet included or incorporated by
reference in the Registration Statement or the Final Prospectus
or (b) for the period from the date of the most recent financial
statements included or incorporated by reference in the
Registration Statement or the Final Prospectus to a specified
date not more than five business days prior to delivery of such
letter, there were any decreases, as compared with the
corresponding period in the preceding year,
-13-
<PAGE>
year, in consolidated operating revenues, operating profit,
income before income taxes or in the total or per-share amounts
of net income, except in all instances for changes or decreases
which the Registration Statement and the Final Prospectus
disclose have occurred or may occur, or as set forth in such
letter accompanied by an explanation thereof;
(4) with regard to the Company and its consolidated
subsidiaries, the amounts included in any unaudited "capsule"
information included or incorporated by reference in the
Registration Statement or the Final Prospectus do not agree with
the corresponding amounts in the audited or unaudited
consolidated financial statements from which such amounts were
derived or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries and
subject to the Company's system of internal accounting controls
relating to the preparation of the financial statements) set forth or
incorporated by reference in the Registration Statement and the Final
Prospectus, as amended or supplemented, including Exhibit 12 to the
Registration Statement and the information included or incorporated in
Items 1, 6 and 7 of the Company's Annual Report on Form 10-K and in
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" included or incorporated by reference in any of
the Company's Quarterly Reports on Form 10-Q, agrees with the
accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation; and
(iv) if unaudited pro forma financial statements are included or
incorporated by reference in the Registration Statement and the Final
Prospectus, on the basis of a reading of the unaudited pro forma
financial statements, carrying out certain specified procedures,
inquiries of certain officials of the Company and the acquired company
who have responsibility for financial and accounting matters, and
proving the arithmetic accuracy of the pro forma financial statements,
nothing came to their attention which caused them to believe that the
pro forma financial statements were not properly compiled on the pro
forma bases set forth in the notes thereto.
References to the Registration Statement and the Final Prospectus in
the paragraph (e) are to such documents as amended and supplemented at the
date of the letter.
-14-
<PAGE>
(f) Subsequent to the date as of which information is given in the
Registration Statement and the Final Prospectus, there shall not have been
(i) any change or decrease specified in the letter referred to in paragraph
(e) of this Section 5 or (ii) any change, or any development involving a
prospective change, in or affecting the business or properties of the
Company and its subsidiaries the effect of which, in any case referred to
in clause (i) or (ii) above, is, in the judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or the delivery of the Securities as contemplated by the
Registration Statement and the Final Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
their counsel, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company
in writing or by telephone or telegraph confirmed in writing.
6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the [1:
Securities] [2: Units] provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 5 hereof
is not satisfied or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, including a
default under Section 8, the Company will reimburse the Underwriters severally
upon demand for all out-of-pocket expenses (including the reasonable fees and
disbursements of Mayer, Brown & Platt) that shall have been reasonably incurred
by them in connection with the proposed purchase and sale of the [1: Securities]
[2: Units].
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the
-15-
<PAGE>
registration statement for the registration of the Securities as originally
filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use in
connection with the preparation thereof, or arises out of or is based upon the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of the
Trustee, and (ii) such indemnity with respect to the Basic Prospectus or any
Preliminary Final Prospectus shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the Final Prospectus
(or the Final Prospectus as amended or supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the sale of
such Securities to such person in any case where such delivery is required by
the Act and the untrue statement or omission of a material fact contained in the
Basic Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Company by on
or behalf of such Underwriter through the Representatives specifically for use
in the preparation of the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 7. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided,
-16-
<PAGE>
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (other than local counsel used principally to facilitate local
litigation), approved by the Representatives in the case of paragraph (a) of
this Section 7, representing the indemnified parties under such paragraph (a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii). The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment (after all rights to appeal have been exhausted) for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel required to be paid by this Section 7(c), the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more
than 90 days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such aforesaid request prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is a party unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 7 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and one
or more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount bears to the sum of such discount and the purchase
price of the [1: Securities] [2: Units] specified in Schedule I hereto and the
Company is responsible for the balance; provided, however, that (y) in no case
shall any Underwriter (except as may be provided in the agreement among
underwriters relating to the offering of the [1: Securities] [2: Units]) be
responsible for any amount in excess of the underwriting discount applicable to
the [1: Securities] [2: Units]) purchased by such Underwriter hereunder and
(z) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of the Act
shall have the same rights to contribution
-17-
<PAGE>
as such Underwriter, and each person who controls the Company within the meaning
of the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contributions as the Company, subject in each case to clause
(y) of this paragraph (d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this paragraph (d), notify such party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any other obligation it or they may have hereunder or
otherwise than under this paragraph (d).
8. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall fail
to purchase and pay for any of the [1: Securities] [2: Units] agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the [1:
principal amount of Securities] [2: number of Units] set forth opposite their
names in Schedule II hereto bears to the aggregate [1: principal amount of
Securities] [2: number of Units] set forth opposite the names of all the
remaining Underwriters) the [1: Securities] [2: Units] which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate [1: principal amount of Securities] [2:
number of Units] which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate [1: principal amount of
Securities] [2: number of Units] set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the [1: Securities] [2: Units], and if such
nondefaulting Underwriters do not purchase all the [1: Securities] [2: Units]
this Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth in
this Section 8, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
9. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the [1: Securities] [2: Units], if prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representatives, impracticable to market the [1: Securities] [2: Units].
-18-
<PAGE>
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Section 6
and 7 hereof shall survive delivery of and payment for the Securities. The
provisions of Sections 6 and 7 hereof shall survive the termination or
cancellation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at Tribune Company, 435 North Michigan Avenue, Chicago, Illinois
60611, attention of David J. Granat, Vice President and Treasurer (with a copy
to the General Counsel of Tribune Company).
12. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
14. COUNTERPARTS. This Agreement and any amendments hereto may be executed
in any number of counterparts, each of which shall be deemed to be an original
but all of which together shall constitute but one agreement.
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<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
TRIBUNE COMPANY
By:
-------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[Signature of Representatives]
For themselves and the other several
Underwriters named in Schedule II to
the foregoing Agreement.
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<PAGE>
Schedule I
Underwriting Agreement dated
Registration Statement No.
Representatives:
Title, Purchase Price and Description of [1: Securities]
[2: Purchased Debt Securities]
Title:
Principal amount and currency:
Purchase price and currency (include accrued interest
or amortization, if any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
[2: Title, Purchase Price and Description of Warrants:
Title:
Number:
Warrant exercise price and currency:
Purchase price and currency:
Principal amount and currency of Warrant
Debt Securities issuable upon exercise
of one Warrant:
Date after which Warrants are exercisable:
Expiration Date:
Detachable Date:
Other Provisions:]
[2: Title and Description of Warrant Debt Securities:
Title:
Principal amount and currency:
Sinking Fund Provisions:
Redemption Provisions:
Other Provisions]:
Closing Date, Time and Location:
Delayed Delivery Arrangements [if any]:
Fee:
Minimum principal amount of each contract: $
I-1
<PAGE>
Maximum aggregate principal amount of all contracts: $
Modification of items to be covered by the letter[s]
delivered pursuant to Section 5(e) at the time this
Agreement is executed
I-2
<PAGE>
SCHEDULE II
[1: Principal
Amount of [2: Number
Securities of Units
to be to be
Underwriters Purchased Purchased
- ------------ --------------- --------------
--------------- --------------
Total........ $ $
=============== ==============
II-1
<PAGE>
TRIBUNE COMPANY
$500,000,000
Medium-Term Notes, Series D
Due Nine Months or More from Date of Issue
Selling Agency Agreement
Merrill Lynch & Co. Chicago, Illinois
Merrill Lynch, Pierce, Fenner & Smith April , 1996
Incorporated
Merrill Lynch World Headquarters
World Financial Center - North Tower
New York, New York 10281
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Tribune Company, a Delaware corporation (the "Company"), confirms its
agreement with each of you with respect to the issue and sale by the Company of
up to the aggregate principal amount set forth in Schedule I hereto of its
Medium-Term Notes, Series D Due Nine Months or More from Date of Issue (the
"Notes"). The Notes will be issued under an indenture dated as of March 1, 1992
between the Company and First Trust of Illinois, National Association, as
successor trustee (the "Trustee"), as supplemented to the date hereof and/or as
modified from time to time by resolutions of the Board of Directors as provided
in Section 3.01 thereof (the "Indenture"). The Notes will, unless otherwise
specified, be issued in minimum denominations of $1,000 and in denominations
exceeding such amount by integral multiples of $1,000, will be issued only in
fully registered form and will have the maturities, annual interest rates,
redemption provisions and other terms set forth in a supplement to the
Prospectus (as hereinafter defined) referred to below. The Notes will be
issued, and the terms thereof established, in accordance with the Indenture and,
in the case of Notes sold pursuant to Section 2(a) hereof, the Medium-Term Notes
Administrative Procedures attached hereto as Exhibit A (the "Procedures"). The
Procedures may only be amended by written agreement of the Company and the
Agents after notice to, and with the approval of, the Trustee. For the purposes
of this Agreement, the term "Agent" shall refer to any of you acting solely in
the capacity as agent for
1
<PAGE>
the Company pursuant to Section 2(a) and not as principal (collectively, the
"Agents"), the term the "Purchaser" shall refer to any of you acting solely as
principal pursuant to Section 2(b) and not as agent (collectively, the
"Purchasers"), and the term "you" shall refer to you collectively whether at any
time any of you is acting in both such capacities or in either such capacity.
Nothing in this agreement shall preclude an Agent from purchasing Notes as a
principal hereunder while acting as an Agent.
1. Representations and Warranties The Company represents and warrants to,
and agrees with, the Agents that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such Form (the file number of which is set forth on Schedule I hereto), which
has become effective, for the registration under the Act of the aggregate
principal amount set forth in Schedule I hereto of debt securities including the
Notes (the "Securities"). Such registration statement, as amended at the date
of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under
the Act and complies in all other material respects with said Rule. In
connection with the sale of Notes the Company has filed or transmitted for
filing with the Commission, pursuant to Rule 424 under the Act, a supplement to
the form of prospectus included in such registration statement relating to the
Notes and the plan of distribution thereof (the "Prospectus Supplement") and has
previously advised the Agents of all further information (financial and other)
with respect to the Company to be set forth therein. In connection with the
sale of Notes, the Company will file with the Commission pursuant to Rule 424
under the Act further supplements to that supplement specifying the maturity
dates, interest rates and other similar terms of any Notes sold pursuant
thereto. Such registration statement, including the exhibits thereto, as
amended to the date of this Agreement, is hereinafter called the "Registration
Statement"; such prospectus, in the form included in the Registration Statement,
as supplemented from time to time (including, without limitation, as
supplemented by the Prospectus Supplement) is hereinafter called the
"Prospectus". Any reference herein to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or before
the date of this Agreement or the date of the Prospectus, as the case may be;
and any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement or the Prospectus shall be deemed to refer
to and include any amendment to the Registration Statement filed with the
Commission pursuant to the Act after the date of this Agreement, any supplement
to the Prospectus filed with this Commission pursuant to Rule 424 under the Act
after the date of this Agreement and the filing of any document under the
Exchange Act after the date of this Agreement or the date of the Prospectus, as
the case may be, deemed to be incorporated therein by reference.
(b) (i) As of the date hereof, (ii) at the date of any acceptance by
the Company of an offer to purchase Notes, (iii) when any amendment to the
Registration Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), (iv) as of the date of
any Terms Agreement (as defined by Section 2(b)), (v) when any supplement to
2
<PAGE>
the Prospectus is filed with the Commission and (vi) at the date of delivery by
the Company of any Notes sold hereunder (a "Closing Date"): (x) the
Registration Statement, as amended as of any such time, and the Prospectus, as
supplemented as of any such time, and the Indenture will comply in all material
respects with the applicable requirements of the Act, the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the Exchange Act and the
respective rules and regulations thereunder, (y) the Registration Statement, as
amended as of any such time, did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and (z) the
Prospectus, as supplemented as of any such time, will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (x) that part of the Registration Statement
which shall constitute the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee or (y) the information contained in or omitted from
the Registration Statement or Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any of you
specifically for use in the Registration Statement and the Prospectus.
(c) As of the date hereof, at the date of any acceptance by the Company
of an offer to purchase Notes, when any amendment to the Registration Statement
becomes effective (including the filing of any document incorporated by
reference in the Registration Statement), as of the date of any Terms Agreement,
when any supplement to the Prospectus is filed with the Commission and at a
Closing Date:
(i) each of the Company and Chicago Tribune Company, Sentinel
Communications Company, Sun-Sentinel Company and Tribune Broadcasting
Company (individually, a "Designated Subsidiary" and collectively, the
"Designated Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full corporate
power and authority to own its properties and conduct its business as
described in the Prospectus, and is duly qualified or licensed to do
business as a foreign corporation and is in good standing under the laws
of each jurisdiction where the character of the properties owned or
leased or the nature of the activities conducted by such corporations,
respectively, makes such qualifications or licensing necessary, and
where the failure to be so qualified or licensed might materially
adversely affect the financial condition, assets, operations or
prospects of the Company and its subsidiaries considered as one
enterprise;
(ii) all the outstanding shares of capital stock of each
Designated Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise set forth
in the Prospectus, all outstanding shares of capital stock of the
Designated Subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected
security interest and any other security interests, claims, liens or
encumbrances;
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(iii) the Indenture has been duly authorized, executed and
delivered and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms (subject,
as to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law)); the Indenture has been duly qualified
under the Trust Indenture Act; and the Notes have been duly authorized
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the purchasers
thereof, will constitute legal, valid and binding obligations of the
Company, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws of general
applicability relating to or affecting the enforcement of creditor's
rights or by the effect of general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at
law) and will be entitled to the benefits of the Indenture;
(iv) the financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Prospectus
present fairly the financial position of the Company and such
consolidated subsidiaries as at the dates indicated and the results of
their operations for the periods specified; except as stated therein,
said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis;
(v) to the best knowledge of the Company, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any
of the Designated Subsidiaries of a character required to be disclosed
in the Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described or
filed as required;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) no consent, approval, authorization or order of any court or
governmental agency or body, domestic or foreign, is required for the
consummation of the transactions contemplated herein except such as have
been obtained under the Act and such as may be obtained under the blue
sky laws of any jurisdiction in connection with the sale of the Notes as
contemplated by this Agreement and such other approvals as have been
obtained; and
(viii) none of the execution of the Indenture, the issuance and
sale of the Notes, the consummation of any other of the transactions
herein contemplated or the fulfillment of the terms hereof will conflict
with, result in a breach of, or constitute a default under the charter
or by-laws of the Company or the terms of any indenture or other
agreement or instrument
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to which the Company or any of the Designated Subsidiaries is a party or
bound, or any order, decree, rule or regulation known to the Company to
be applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or arbitrator,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries.
(d) The Company confirms as of the date hereof, and each acceptance by
the Company of an offer to purchase Notes will be deemed to be an affirmation,
that the Company is in compliance with all provisions of Section 1 of Laws of
Florida, Chapter 92-198, An Act Relating to Disclosure of Doing Business with
Cuba, and the Company further agrees that if it commences engaging in business
with the government of Cuba or with any person or affiliate located in Cuba
after the date the Registration Statement becomes or has become effective with
the Commission or with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or with any
person or affiliate located in Cuba changes in any material way, the Company
will provide the Department notice of such business or change, as appropriate,
in a form acceptable to the Department.
2. Appointment of Agent(s); Solicitation by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms and
conditions set forth herein and subject to the reservation by the Company of the
right to sell Notes directly to purchasers on its own behalf or through other
agents, dealers or underwriters on terms substantially identical to the terms
contained herein, including the commission schedule set forth in Schedule I
hereto, except in the case of sales pursuant to a Terms Agreement (as defined
herein) the Company hereby authorizes each of the Agents to act as its agent to
solicit offers for the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, to use its reasonable best efforts to solicit offers to purchase
the Notes from the Company upon the terms and conditions set forth in the
Prospectus as amended or supplemented and in the Procedures.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of instructions from
the Company, the Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the Company has advised them
that such solicitation may be resumed. If the Company has instructed the Agents
to suspend for any period of time the solicitation of offers to purchase the
Notes and thereafter requests the Agents to resume the solicitation of offers to
purchase the Notes, the Agents shall not be required to resume such solicitation
(i) earlier than the date five business days (or such fewer business days as
shall be acceptable to each such Agent) after such request and (ii) unless each
Agent shall have received prior to such resumption the documents referred to in
Sections 4(i), (j) and (k) which the Agents had been entitled to receive
(assuming that any required notices had been timely made) but which such Agents
shall not have theretofore received.
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The Company agrees to pay each Agent a commission on the Closing Date
with respect to each sale of Notes by the Company as a result of a solicitation
made by such Agent, in an amount equal to that percentage specified on Schedule
I hereto of the aggregate principal amount of the Notes so sold by the Company
and such commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and to the Procedures, offers
for the purchase of Notes may be solicited by an Agent as agent for the Company
at such time and in such amounts as such Agent deems advisable. The Company may
from time to time offer Notes for sale otherwise than through an Agent.
(b) Subject to the terms and conditions stated herein, whenever the
Company and one of you determines that the Company shall sell Notes directly to
you as Purchaser, each such sale of Notes shall be made in accordance with the
terms of this Agreement and a supplemental agreement relating thereto between
the Company and the Purchaser. Each such supplemental agreement (which (i) may
be an oral agreement between the Purchaser and the Company or (ii) may take the
form of an exchange of any standard form of written telecommunication between a
Purchaser and the Company) is herein referred to as a "Terms Agreement." Each
such Terms Agreement, if in writing, shall be substantially in the form of
Exhibit B and, if oral, shall be confirmed in writing as soon as practicable
after the agreement between the Purchaser and the Company, such confirmation to
be substantially in the form of Exhibit B. The Purchaser's commitment to
purchase Notes pursuant to any Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each Terms Agreement shall describe the Notes to be purchased by the Purchaser
pursuant thereto, specify the principal amount of such Notes, the price to be
paid to the Company for such Notes, the rate at which interest will be paid on
the Notes, the Closing Date for such Notes, the place of delivery of the Notes
and payment therefor, the method of payment and any modification of the
requirements for the delivery of the opinions of counsel, the certificates from
the Company or its officers, and the letter from the Company's independent
public accountants, pursuant to Section 6(b). Such Terms Agreement shall also
specify the period of time referred to in Section 4(1).
Delivery of the certificates for Notes sold to the Purchaser pursuant to
any Terms Agreement shall be made as agreed to between the Company and the
Purchaser as set forth in the respective Terms Agreement, not later than the
Closing Date set forth in such Terms Agreement, against payment of funds to the
Company in the net amount due the Company for such Notes by the method and in
the form set forth in the respective Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a
Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by such
Purchaser at a price equal to 100% of the principal amount thereof less a
percentage equal to the commission applicable to an agency sale of a Note of
identical maturity and (ii) may be resold by such Purchaser at varying prices
from time to time or, if set forth in the applicable Terms Agreement and Pricing
Supplement, at a fixed public offering price. In connection with any resale of
Notes purchased, a Purchaser may use a selling or
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<PAGE>
dealer group and may reallow to any broker or dealer any portion of the discount
or commission payable pursuant hereto.
3. Offering and Sale of Notes. Each Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
----------
(a) Prior to the termination of the offering of the Notes, the Company
will not file any amendment of the Registration Statement or supplement to the
Prospectus (except for a supplement relating to an offering of securities other
than the Notes) unless the Company has previously furnished to each of you a
copy for your review prior to filing. Subject to the foregoing sentence, the
Company will cause each supplement to the Prospectus to be filed with the
Commission as required pursuant to Rule 424. The Company will promptly advise
each of you (i) when each supplement to the Prospectus shall have been filed
with the Commission pursuant to Rule 424, (ii) when any amendment of the
Registration Statement shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment of or
supplement to the Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or notification and, if issued, to obtain as soon as possible
the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is required
to be delivered under the Act, any event occurs as a result of which the
Registration Statement, as then amended, or the Prospectus, as then
supplemented, would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it shall be
necessary to amend the Registration Statement or to supplement the Prospectus to
comply with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) notify each of you to suspend solicitation of offers
to purchase Notes (and, if so notified by the Company, each of you shall
forthwith suspend such solicitation and cease using the Prospectus as then
amended or supplemented), (ii) prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or an amendment or
supplement which will effect such compliance and (iii) supply any such amended
or supplemented Prospectus to each of you in such quantities as you may
reasonably request. If such amendment or supplement, and any documents,
certificates and opinions furnished to each of you pursuant to paragraph (f) of
this Section 4 in connection with the preparation or filing of such amendment or
supplement, are satisfactory in all respects to you, you will, upon the filing
of such amendment or supplement with the Commission and upon the effectiveness
of an amendment to the Registration Statement if such an amendment is required,
resume your obligation to solicit offers to purchase Notes hereunder.
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<PAGE>
(c) As soon as practicable, the Company will make generally available to
its security holders and to each of you an earnings statement or statements
(which need not be audited) of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to each of you and your counsel, without
charge, one signed and/or conformed copy of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective and, so long as delivery of a prospectus may be required by the Act,
the Company will furnish to each of you as many copies of any preliminary
Prospectus and the Prospectus and any amendments thereof and supplements thereto
as you may reasonably request.
(e) The Company will (i) arrange for the qualification of the Notes for
sale under the laws of such jurisdictions as you and the Company may mutually
agree, which agreement will not be unreasonably withheld, (ii) maintain such
qualifications in effect so long as required for the distribution of the Notes,
and (iii) arrange for the determination of the legality of the Notes for
purchase by institutional investors; provided, however, that the Company shall
not be required to effect or maintain any such qualification in any jurisdiction
that would result in it having to execute or file a general consent to service
of process under the laws of such jurisdiction or to qualify to do business as a
foreign corporation in such jurisdiction.
(f) The Company shall furnish to each of you such documents,
certificates of officers of the Company and opinions of counsel for the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, any preliminary Prospectus, the Prospectus, and any
amendments thereof or supplements thereto, the Indenture, the Notes, this
Agreement, any Terms Agreement, and the performance by the Company and each of
you of your respective obligations hereunder and thereunder as the Company and
each of you may from time to time and at any time prior to the termination of
this Agreement reasonably request.
(g) The Company shall, whether or not any sale of the Notes is
consummated (including, without limitation, if such non-sale occurs through any
termination pursuant to Section 9 hereof or any refusal, inability or failure on
the part of the Company to perform any agreement herein or comply with any
provision hereof), (i) pay all expenses incident to the performance of its
obligations under this Agreement, including the fees and disbursements of its
accountants and counsel, the cost of printing and delivery of the Registration
Statement, any preliminary Prospectus, the Prospectus, all amendments thereof
and supplements thereto, the Indenture, this Agreement and all other documents
relating to the offering, the cost of preparing, printing, packaging and
delivering the Notes, the fees and disbursements, including fees of counsel,
incurred in connection with Section 4(e), the fees and disbursements of the
Trustee and the fees of any agency that rates the Notes and (ii) be responsible
for the fees of your counsel incurred in connection with both this Agreement and
the offering and sale of the Notes (up to an aggregate of [$50,000]).
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<PAGE>
(h) Each acceptance by the Company of an offer to purchase Notes will be
deemed to be (i) a representation and warranty to you that neither the
Registration Statement nor the Prospectus, as then amended or supplemented,
fails to reflect any facts or events which, individually or in the aggregate,
represent a material change in the information set forth in the Registration
Statement or the Prospectus, as then amended or supplemented and (ii) a
reconfirmation of the representations and warranties of the Company in Section
1(b).
(i) Each time that the Registration Statement or the Prospectus is
amended (including by the filing of any document incorporated by reference in
the Registration Statement other than a current report on form 8-K which is
reasonably deemed immaterial by all of the Agents) or supplemented (other than
by an amendment or supplement relating solely to any offering of securities
other than the Notes or providing solely for the specification of or a change in
the maturity dates, the interest rates, the issuance prices or other similar
terms offered on any Notes), the Company will deliver or cause to be delivered
promptly to each of you a certificate of the Company signed by the President or
any Vice President and the principal financial or accounting officer of the
Company, dated the date of the effectiveness of such amendment or the date of
filing of such supplement, in form reasonably satisfactory to you, to the effect
that the statements contained in the certificate that was last furnished to you
pursuant to either Section 5(d) or this Section 4(i) are true and correct at the
time of the effectiveness of such amendment or the filing of such supplement as
though made at and as of such time (except that (i) the last day of the fiscal
quarter for which financial statements of the Company were last filed with the
Commission shall be substituted for the corresponding date in such certificate
and (ii) such statements shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of the effectiveness
of such amendment or the filing of such supplement) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
Section 5(d) but modified to relate to the last day of the fiscal quarter for
which financial statements of the Company were last filed with the Commission
and to the Registration Statement and the Prospectus as amended and supplemented
to the time of the effectiveness of such amendment or the filing of such
supplement.
(j) Each time that the Registration Statement or the Prospectus is
amended (including by the filing of any document incorporated by reference in
the Registration Statement) or supplemented (other than by an amendment or
supplement (i) relating solely to any offering of securities other than the
Notes, (ii) providing solely for the specification of or a change in the
maturity dates, the interest rates, the issuance prices or other similar terms
offered on any Notes or (iii) setting forth or incorporating by reference
financial statements or other information as of and for a fiscal quarter,
unless, in the case of clause (iii) above, in the reasonable judgment of any of
you, confirmed to the Company in writing, such financial statements or other
information are of such a nature that an opinion of counsel should be
furnished), the Company shall furnish or cause to be furnished promptly to each
of you a written opinion of counsel of the Company satisfactory to each of you,
dated the date of the effectiveness of such amendment or the date of filing of
such supplement, in form satisfactory to each of you, of the same tenor as the
opinion referred to in Section 5(b) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement or, in lieu of
such opinion,
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<PAGE>
counsel last furnishing such an opinion to you may furnish each of you with a
letter to the effect that you may rely on such last opinion to the same extent
as though it were dated the date of such letter authorizing reliance (except
that statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of the effectiveness of such amendment or the filing of such supplement).
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus, the Company, upon the
written request of any Agent (except that no such request shall be required with
respect to audited financial statements and related financial information
included or incorporated by reference in the Company's Annual Reports on Form
10-K), shall cause Price Waterhouse LLP ("Price Waterhouse"), its independent
public accountants, promptly to furnish to each of you a letter, dated the date
of the effectiveness of such amendment or the date of filing of such supplement,
in form satisfactory to each of you, of the same tenor as the letter referred to
in Section 5(e) with such changes as may be necessary to reflect the amended and
supplemental financial information included or incorporated by reference in the
Registration Statement and the Prospectus, as amended or supplemented to the
date of such letter, provided that if the Registration Statement or the
Prospectus is amended or supplemented solely to include or incorporate by
reference financial information as of and for a fiscal quarter, Price Waterhouse
may limit the scope of such letter, which shall be satisfactory in form to each
of you, to the unaudited financial statements included in such amendment or
supplement, unless any other information included or incorporated by reference
therein of an accounting, financial or statistical nature is of such a nature
that, in your reasonable judgment, such letter should cover such other
information.
(l) During the period, if any, specified in any Terms Agreement, the
Company shall not, without the prior consent of the Purchaser(s) thereunder,
issue or announce the proposed issuance of any of its debt securities, including
Notes, with terms substantially similar to the Notes being purchased pursuant to
such Terms Agreement.
(m) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and will furnish to each of you copies of
such documents. In addition, if the Company makes any announcement to the
general public concerning earnings or concerning any other event which is
required to be described, or which the Company proposes to describe, in a
document filed pursuant to the Exchange Act, the Company will furnish to each of
you upon request the information contained in such announcement as soon as
practicable after such announcement. The Company also will furnish to each of
you upon request copies of all other press releases or announcements to the
general public. The Company will immediately notify each of you of any
downgrading in the rating of the Notes or any other debt securities of the
Company, by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 426(g) under the Act), as soon as the Company
learns of any such downgrading.
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5. Conditions to the Obligations of the Agent(s) The obligations of each
Agent to solicit offers to purchase the Notes shall be subject to (i) the
accuracy of the representations and warranties on the part of the Company
contained herein as of (v) the date hereof, (w) the date of acceptance by the
Company of an offer to purchase Notes, (x) the date of the effectiveness of any
amendment to the Registration Statement (including the filing of any document
incorporated by reference therein), (y) the date any supplement to the
Prospectus is filed with the Commission and (z) each Closing Date, (ii) the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, (iii) the performance by the Company of its obligations
hereunder and (iv) the following additional conditions precedent:
(a) If filing of the Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have
been filed in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to each Agent the opinion of
Sidley & Austin, counsel for the Company, dated the date hereof, to the effect
that:
(i) each of the Company and the Designated Subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii) all the outstanding shares of capital stock of each
Designated Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and, to the knowledge of such
counsel, except as otherwise set forth in the Prospectus, all
outstanding shares of capital stock of the Designated Subsidiaries are
owned by the Company either directly or through wholly owned
subsidiaries and are free and clear of any security interests, claims,
liens or encumbrances;
(iii) the Notes and the Indenture conform in all material respects
to the description thereof contained in the Prospectus; the holders of
outstanding shares of capital stock of the Company are not entitled to
rights to subscribe for the Notes;
(iv) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its terms
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws of general applicability
relating to or affecting the enforcement of creditor's rights or by the
effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law); the
Indenture has been duly qualified under the Trust Indenture Act; and the
Notes have been duly authorized and when executed and authenticated in
accordance with the provisions of
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the Indenture and the procedures adopted by the Board of Directors of
the Company and the Special Committee thereof and delivered to and paid
for by the purchasers thereof in the manner provided in this Agreement,
the Prospectus and any applicable Terms Agreement, will constitute
legal, valid and binding obligations of the Company except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws of general applicability
relating to or affecting the enforcement of creditor's rights or by the
effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law) and
will be entitled to the benefits of the Indenture;
(v) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any
of its Designated Subsidiaries of a character required to be disclosed
in the Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit to the Registration Statement,
which is not described or filed as required; and the statements included
or incorporated in the Prospectus with respect to any such action, suit,
proceeding, franchise, contract or other document fairly summarize the
matters required to be disclosed or described;
(vi) the Registration Statement and any amendments thereto have
become effective under the Act; to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration Statement
has been issued, no proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Prospectus and each
amendment thereof or supplement thereto as of their respective effective
or issue dates (other than the financial statements, financial data,
statistical data and supporting schedules included or incorporated by
reference therein, as to which such counsel need express no opinion)
complied as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder; and, although such counsel has not independently verified,
is not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of statements contained in the Registration
Statement, the Prospectus or any amendment thereof or supplement
thereto, except as noted above, nor has such counsel verified the
computation or compilation of financial statements and other financial
data, nothing has come to such counsel's attention which causes such
counsel to believe that the Registration Statement or any amendment
thereof (other than the financial statements, financial data,
statistical data and supporting schedules, as to which such counsel need
express no belief) at the time it became effective and at the date of
this Agreement, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (other than the financial statements, financial data,
statistical data and supporting schedules, as to which such counsel need
express no belief), at the date of such opinion, includes any untrue
statement of a material fact or omits to state a material fact necessary
to
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make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) no consent, approval, authorization or order of any court
or governmental agency or body, domestic or foreign, is required for the
consummation of the transactions contemplated herein except such as have
been obtained under the Act and the Trust Indenture Act and such as may
be required under the blue sky laws of any jurisdiction in connection
with the sale or offer for sale of the Notes as contemplated by this
Agreement and such other approvals (specified in such opinion) as have
been obtained;
(ix) none of the execution of the Indenture, the issuance and sale
of the Notes, the consummation of any other of the transactions herein
contemplated or the fulfillment of the terms hereof will result in a
breach of, or constitute a default under, the charter or by-laws of the
Company or the terms of any indenture or other material agreement or
instrument known to such counsel and to which the Company or any of its
Designated Subsidiaries is a party or bound, or any order, decree, rule
or regulation known to such counsel to be applicable to the Company or
any of its Designated Subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator, domestic or
foreign, having jurisdiction over the Company or any of its Designated
Subsidiaries; and
(x) no holders of outstanding securities of the Company have
rights to the registration of such securities under the Registration
Statement.
Such counsel may limit its opinion to matters involving the
application of the laws of the State of Illinois and the United States
and the General Corporation Law of the State of Delaware and, in
rendering such opinion, may rely as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Company
and public officials.
(c) Each Agent shall have received from Mayer, Brown & Platt, counsel
for the Agents, such opinion or opinions, dated the date hereof, with respect to
the issuance and sale of the Notes, the Indenture, the Registration Statement,
the Prospectus and other related matters as the Agents may reasonably require,
and the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to each Agent a certificate of the
Company, signed by the Chairman of the Board, the President or any Vice
President and by the principal financial or accounting officer of the Company,
dated the date hereof, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus and this Agreement
and that:
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(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
date hereof with the same effect as if made on the date hereof and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied as a condition to
the obligation of the Agents to solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge, threatened;
and
(iii) since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change in
the condition (financial or other), earnings, business or properties of
the Company and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus.
(e) At the date hereof, Price Waterhouse shall have furnished to the
Agents a letter or letters (which may refer to letters previously furnished to
the Agents), dated as of the date hereof, in form and substance satisfactory to
the Agents and Price Waterhouse, confirming that they are independent
accountants with respect to the Company within the meaning of the Act and the
applicable published rules and regulations thereunder and stating in effect
that:
(i) in their opinion, the consolidated financial statements
(including financial schedules) of the Company and its subsidiaries
examined by and reported on by them and included or incorporated by
reference in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations thereunder with respect to registration statements
on Form S-3;
(ii) on the basis of procedures of review in accordance with
standards established by the American Institute of Certified Public
Accountants (but not an audit in accordance with generally accepted
auditing standards) consisting of:
(1) reading the minutes of meetings of the stockholders and
the Board of Directors of the Company as set forth in the minute
books through a specified date not more than five business days
prior to the date of delivery of such letter;
(2) reading the latest available unaudited interim
consolidated financial data of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement or the Prospectus and the latest unaudited
interim financial data made available by the Company and its
subsidiaries; and
14
<PAGE>
(3) making inquiries of certain officials of the Company
who have responsibilities for financial and accounting matters
regarding the specific items for which representations are
requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(A) the unaudited interim consolidated financial data of
the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations thereunder;
(B) any material modifications should be made to said
unaudited consolidated financial data of the Company and its
consolidated subsidiaries for it to be in conformity with
generally accepted accounting principles;
(C) (i) with respect to the period subsequent to the
date of the most recent financial statements (other than any
capsule information), audited or unaudited, included or
incorporated by reference in the Registration Statement and
the Prospectus, at the date of the latest available interim
financial data and at a specified date not more than five
business days prior to the date of delivery of such letter,
except as otherwise disclosed in the Prospectus or
incorporated by reference and except when such data is not
prepared by or available from the Company, there was any
change in the common stock or long-term debt of the Company
and its consolidated subsidiaries or any decreases in
consolidated total assets, net current assets (working
capital) or stockholders' investment as compared with
amounts shown in the latest consolidated balance sheet
included or incorporated by reference in the Registration
Statement or the Prospectus or (ii) for the period from the
date of the most recent financial statements included or
incorporated by reference in the Registration Statement or
the Prospectus to a specified date not more than five
business days prior to delivery of such letter, except as
otherwise disclosed in the Prospectus or incorporated by
reference or disclosed to you, there were any decreases, as
compared with the corresponding period in the preceding
year, in consolidated operating revenues, operating profit,
income before income taxes or in the total or per-share
amounts of net income, except in all instances for changes
or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur, or as set
forth in such letter accompanied by an explanation thereof;
(D) with regard to the Company and its consolidated
subsidiaries, the amounts included in any unaudited
"capsule" information included or
15
<PAGE>
incorporated by reference in the Registration Statement or
the Prospectus do not agree with the corresponding amounts
in the unaudited or audited consolidated financial
statements from which such amounts were derived or were not
determined on a basis substantially consistent with that of
the corresponding amounts in the audited financial
statements included or incorporated by reference in the
Registration Statement and the Prospectus.
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries and
subject to the Company's system of internal accounting controls relating
to the preparation of the financial statements) set forth or
incorporated by reference in the Registration Statement and the
Prospectus, as amended or supplemented, including Exhibit 12 to the
Registration Statement and the information included or incorporated in
Items 1, 6 and 7 of the Company's Annual Report on Form 10-K and in
"Management's Discussion and Analysis of Financial Condition and Results
of Operations" included or incorporated by reference in any of the
Company's Quarterly Reports on Form 10-Q, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions of
legal interpretation; and
(iv) if unaudited pro forma financial statements are included or
incorporated by reference in the Registration Statement and the
Prospectus, on the basis of a reading of the unaudited pro forma
financial statements, carrying out certain specified procedures,
inquiries of certain officials of the Company and the acquired company
who have responsibility for financial and accounting matters, and
proving the arithmetic accuracy of the pro forma financial statements,
nothing came to their attention which caused them to believe that the
pro forma financial statements were not properly compiled on the pro
forma bases set forth in the notes thereto.
References to the Registration Statement and the Prospectus in this
paragraph (e) are to such documents as amended and supplemented at the date of
the letter.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
been (i) any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5, except as otherwise disclosed in the
Prospectus or incorporated by reference or (ii) any change, or any development
involving a prospective change, in or affecting the business or properties of,
the Company and its subsidiaries the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the judgment of each Agent, so material and
adverse as to make it impractical or inadvisable to proceed with the soliciting
of offers to purchase the Notes as contemplated by the Registration Statement
and the Prospectus.
(g) Prior to the date hereof, the Company shall have furnished to each
Agent such further information, certificates and documents as such Agent may
reasonably request.
16
<PAGE>
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to either Agent and its counsel, this Agreement and all
obligations of such Agent hereunder may be canceled at any time by such Agent.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be delivered
at the office of Mayer, Brown & Platt, counsel for the Agents, at 190 South
LaSalle Street, Chicago, Illinois on the date hereof.
6. Conditions to the Obligations of the Purchaser(s). The obligations of
the Purchaser(s) to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of any related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) If specified by any related Terms Agreement and except to the extent
modified by such Terms Agreement, the Purchaser(s) shall have received,
appropriately updated, (i) a certificate of the Company, dated as of the Closing
Date, to the effect set forth in Section 5(d), (ii) the opinion of Sidley &
Austin, counsel for the Company, dated as of the Closing Date, to the effect set
forth in Section 5(b), (iii) the opinion of Mayer, Brown & Platt, counsel for
the Purchaser(s), dated as of the Closing Date, to the effect set forth in
Section 5(c), and (iv) a letter of Price Waterhouse, independent accountants for
the Company, dated as of the Closing Date, to the effect set forth in Section
5(e).
(c) Prior to the Closing Date, the Company shall have furnished to the
Purchaser(s) such further information, certificates and documents as the
Purchaser(s) may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement and
any Terms Agreement, or if any of the opinions and certificates mentioned above
or elsewhere in this Agreement or such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the
Purchaser(s) and its counsel, such Terms Agreement and all obligations of the
Purchaser(s) thereunder and with respect to the Notes subject thereto may be
canceled at, or at any time prior to, the respective Closing Date by the
Purchaser(s). Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
17
<PAGE>
7. Right of Person Who Agreed to Purchase to Refuse to Purchase. The
Company agrees that any person who has agreed to purchase and pay for any Note,
including a Purchaser and any person who purchases pursuant to a solicitation by
any of the Agents, shall have the right to refuse to purchase such Note if, at
the Closing Date therefor, either (a) any condition set forth in Section 5 or 6,
as applicable, shall not be satisfied or (b) subsequent to the agreement to
purchase such Note, any change, or any development involving a prospective
change, in or affecting the business or properties of the Company and its
subsidiaries shall have occurred the effect of which is, in the judgment of such
Purchaser or the Agent which presented the offer to purchase such Note, as
applicable, so material and adverse as to make it impractical or inadvisable to
proceed with the delivery of such Note.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each of you and each person who controls each of you within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of you or
them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the
Prospectus or any preliminary Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of such of you specifically for use therein or arises out of or is based
on the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the
Trustee and (ii) such indemnity with respect to the Prospectus, in the form
included in the registration statement as filed, any Preliminary Prospectus or
any preliminary Prospectus Supplement shall not inure to the benefit of any
Agent (or any person controlling such Agent) through which the person asserting
any such loss, claim, damage or liability purchased the Notes which are the
subject thereof if such person did not receive a copy of the Prospectus
Supplement (or the Prospectus Supplement as amended or supplemented) excluding
documents incorporated therein by reference at or prior to the confirmation of
the sale of such Notes to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Prospectus, in the form included in the registration statement
as filed, any Preliminary Prospectus or any preliminary Prospectus Supplement
was corrected in the Prospectus Supplement (or the Prospectus Supplement as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
18
<PAGE>
(b) Each of you agrees to indemnify and hold harmless the Company, each of
its directors, each of its officers who signs the Registration Statement, and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
you, but only with reference to written information relating to such of you
furnished to the Company by or on behalf of such of you specifically for use in
the documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which you may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (other than local counsel used principally to facilitate local
litigation), approved by you in the case of paragraph (a) of this Section 8,
representing the indemnified parties under such paragraph (a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment (after
all rights to appeal have been exhausted) for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel required to be paid by this Section 8(c), the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more
than 90 days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such aforesaid request prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is a party unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
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<PAGE>
(d) In order to provide for just and equitable contribution in circumstances
in which the indemnification provided for in paragraph (a) of this Section 8 is
due in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on grounds of policy or otherwise, the Company and
each of you shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) to which the Company and such of you may
be subject in such proportion so that each of you is responsible for that
portion represented by the percentage that the aggregate commissions received by
you individually pursuant to Section 2 in connection with the Notes from which
such losses, claims, damages and liabilities arise (or, in the case of Notes
sold pursuant to a Terms Agreement, the aggregate commissions that would have
been received by you individually if such commissions had been payable), bears
to the aggregate principal amount of the Notes sold and the Company is
responsible for the balance; provided, however, that (y) in no case shall you
individually be responsible for any amount in excess of the commissions received
by you individually in connection with the Notes from which such losses, claims,
damages and liabilities arise (or, in the case of Notes sold pursuant to a Terms
Agreement, the aggregate commissions that would have been received by you
individually if such commissions had been payable), and (z) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls each of you within the meaning of the Act shall have the same rights to
contribution as you and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to
clause (y) of this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
9. Termination (a) This Agreement will continue in effect until terminated
as provided in this Section 9. This Agreement may be terminated by either the
Company as to any of you or by any of you insofar as this Agreement relates to
you by giving written notice of such termination to you or the Company, as the
case may be; provided, however, that for so long as is required by the Act, the
Company shall keep available a current Prospectus meeting the requirements of
the Act and shall file all amendments and supplements under the Act required for
that purpose. This Agreement shall so terminate at the close of business on the
first business day following the receipt of such notice by the party to whom
such notice is given. In the event of such termination, no party shall have any
liability to the other party hereto, except as provided in the fourth paragraph
of Section 2(a) with respect to unpaid commissions, Section 4(g), Section 8 and
Section 10.
(b) Each Terms Agreement shall be subject to termination in the absolute
discretion of the Purchaser, by notice given to the Company prior to delivery of
any payment for Notes to be
20
<PAGE>
purchased thereunder, if prior to such time (i) there has been, since the date
of such Terms Agreement or since the respective dates as of which information is
given in the Registration Statement, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of the business, (ii)
trading in the Company's common stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (iii) a banking moratorium
shall have been declared either by Federal or New York State authorities, (iv)
there shall have occurred any material adverse change in the financial markets
in the United States or any outbreak or escalation of hostilities or other
national or international calamity or crisis the effect of which is such as to
make it, in the judgment of the Purchaser, impracticable to market such Notes or
enforce contracts for the sale of such Notes, or (v) there shall have been,
subsequent to the agreement to purchase such Note, any downgrading in the rating
accorded the Company's debt securities by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 426(g) under the Act).
10. Representation and Indemnities to Survive The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of you set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of either of you or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Notes. The provisions of Section 4(g) and 8 hereof shall
survive the termination or cancellation of this Agreement.
11. Notices All communications hereunder will be in writing and effective
only on receipt, and, if sent to either of you, will be mailed, delivered or
telegraphed and confirmed to such of you, at the addresses specified in Schedule
I hereto; or if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at Tribune Company, 435 North Michigan Avenue, Chicago,
Illinois, 60611, attention of David J. Granat, Vice President and Treasurer
(with a copy to the General Counsel of Tribune Company).
12. Successors This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder, except as otherwise provided
in Section 7 hereof.
13. Applicable Law This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
14. Counterparts This Agreement and any amendments hereto may be executed
in any number of counterparts, each of which shall be deemed to be an original
but all of which together shall constitute but one agreement.
21
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and each other countersigning party.
Very truly yours,
TRIBUNE COMPANY
By: _____________________________________
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: ________________________________
Title:
Investment Banking Division
- ------------------------------------
Goldman, Sachs & Co.
SALOMON BROTHERS INC
By: ________________________________
Title:
22
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SCHEDULE I
Selling Agency Agreement dated April , 1996
Registration Statement No. 333-
Amount of the Notes: $500,000,000
Amount of the Securities: $500,000,000
The Company agrees to pay the Agents a commission equal to the following
percentage of the principal amount of each Note sold by the Agents:
Term Commission Rate
---- ---------------
9 months to less than 12 months............ .125%
12 months to less than 18 months........... .150%
18 months to less than 2 years............. .200%
2 years to less than 3 years............... .250%
3 years to less than 4 years............... .350%
4 years to less than 5 years............... .450%
5 years to less than 6 years............... .500%
6 years to less than 7 years............... .550%
7 years to less than 10 years.............. .600%
10 years to less than 15 years............. .625%
15 years to less than 20 years............. .700%
20 years to less than 30 years............. .750%
Over 30 years.............................. To be negotiated
at the time of
such sale.
Addresses for Notice to Agents:
Notices to the Agents shall be directed to them at:
Notices to Salomon Brothers Inc shall be directed to it at Seven World Trade
Center, New York, New York 10048, Attention of the Medium-Term Note Department.
Notices to Goldman, Sachs & Co. shall be directed to it at 85 Broad Street,
New York, New York 10004, Attention of Medium-Term Note Desk.
I-1
<PAGE>
Notices to Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated shall be directed to it at North Tower (23rd Floor), World
Financial Center, New York, New York 10281-1323, Attention of MTN Product
Management.
I-2
<PAGE>
TRIBUNE COMPANY
ADMINISTRATIVE PROCEDURES
FOR FIXED RATE AND FLOATING RATE MEDIUM-TERM NOTES
(DATED AS OF APRIL ___, 1996)
Medium-Term Notes Due Nine Months or More From Date of Issue (the
"Notes") are to be offered on a continuous basis by TRIBUNE COMPANY, a Delaware
corporation (the "Company"), to or through Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co. and Salomon Brothers
Inc (each, an "Agent" and, collectively, the "Agents") pursuant to a Selling
Agency Agreement, dated April ___, 1996 (the "Selling Agency Agreement"), by and
among the Company and the Agents. The Selling Agency Agreement provides both for
the sale of Notes by the Company to one or more of the Agents as principal for
resale to investors and other purchasers and for the sale of Notes by the
Company directly to investors (as may from time to time be agreed to by the
Company and the related Agent or Agents), in which case each such Agent will act
as an agent of the Company in soliciting purchases of Notes.
Unless otherwise agreed by the related Agent or Agents and the
Company, Notes will be purchased by the related Agent or Agents as principal.
Such purchases will be made in accordance with terms agreed upon by the related
Agent or Agents and the Company (which terms shall be agreed upon orally, with
written confirmation prepared by the related Agent or Agents and mailed to the
Company). If agreed upon by any Agent or Agents and the Company, the Agent or
Agents, acting solely as agent or agents for the Company and not as principal,
will use reasonable best efforts to solicit offers to purchase the Notes. Only
those provisions in these Administrative Procedures that are applicable to the
particular role to be performed by the related Agent or Agents shall apply to
the offer and sale of the relevant Notes.
The Notes will be issued as a series of debt securities under an
Indenture, dated as of March 1, 1992, as amended, supplemented or modified from
time to time (the "Indenture"), between the Company and First Trust of Illinois,
National Association, as successor trustee (together with any successor in such
capacity, the "Trustee"). The Company has filed a Registration Statement with
the Securities and Exchange Commission (the "Commission") registering debt
securities and warrants to purchase debt securities (which includes the Notes)
(the "Registration Statement", which term shall include any additional
registration statements filed in connection with the Notes). The most recent
base prospectus deemed part of the Registration Statement, as supplemented with
respect to the Notes, is herein referred to as "Prospectus". The most recent
supplement to the Prospectus setting forth the purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) is herein
referred to as the "Pricing Supplement".
B-1
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The Notes will either be issued (a) in book-entry form and represented
by one or more fully registered Notes without coupons (each, a "Global Note")
delivered to the Trustee, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC, or (b) in certificated form
(each, a "Certificated Note") delivered to the investor or other purchaser
thereof or a person designated by such investor or other purchaser.
General procedures relating to the issuance of all Notes are set forth
in Part I hereof. Additionally, Notes issued in book-entry form will be issued
in accordance with the procedures set forth in Part II hereof and Certificated
Notes will be issued in accordance with the procedures set forth in Part III
hereof. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Indenture or the Notes, as the case may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/Authentication:
Each Note will be dated as of the date of its authentication by the Trustee.
Each Note shall also bear an original issue date (each, an "Original Issue
Date"). The Original Issue Date shall remain the same for all Notes subsequently
issued upon transfer, exchange or substitution of an original Note regardless of
their dates of authentication.
Maturities:
Each Note will mature on a date nine months or more from its Original Issue Date
(the "Stated Maturity Date") selected by the investor or other purchaser and
agreed to by the Company.
Registration:
Unless otherwise provided in the applicable Pricing Supplement, Notes will be
issued only in fully registered form.
Denominations:
Unless otherwise provided in the applicable Pricing Supplement, the Notes will
be issued in denominations of $1,000 and integral multiples thereof.
Interest Rate Bases applicable to Floating Rate Notes:
Unless otherwise provided in the applicable Pricing Supplement, Floating
Rate Notes will bear interest at a rate or rates determined by reference to the
CD Rate, the CMT Rate, the Commercial Paper Rate, the Eleventh District Cost of
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Funds Rate, the Federal Funds Rate, LIBOR, the Prime Rate, the Treasury Rate, or
such other interest rate basis or formula as may be set forth in applicable
Pricing Supplement, or by reference to two or more such rates, as adjusted by
the Spread and/or Spread Multiplier, if any, applicable to such Floating Rate
Notes.
Redemption/Repayment:
The Notes will be subject to redemption by the Company in accordance with the
terms of the Notes, which will be fixed at the time of sale and set forth in the
applicable Pricing Supplement. If no Initial Redemption Date is indicated with
respect to a Note, such Note will not be redeemable prior to its Stated Maturity
Date.
The Notes will be subject to repayment at the option of the Holders thereof in
accordance with the terms of the Notes, which will be fixed at the time of sale
and set forth in the applicable Pricing Supplement. If no Optional Repayment
Date is indicated with respect to a Note, such Note will not be repayable at the
option of the Holder prior to its Stated Maturity Date.
Calculation of Interest:
In case of Fixed Rate Notes, interest (including payments for partial periods)
will be calculated and paid on the basis of a 360-day year of twelve 30-day
months.
The interest rate on each Floating Rate Note will be calculated by reference to
the specified Interest Rate Basis or Bases plus or minus the applicable Spread,
if any, and/or multiplied by the applicable Spread Multiplier, if any.
Unless otherwise provided in the applicable Pricing Supplement, interest on each
Floating Rate Note will be calculated by multiplying its face amount by an
accrued interest factor. Such accrued interest factor is computed by adding the
interest factor calculated for each day in the period for which accrued interest
is being calculated. Unless otherwise provided in the applicable Pricing
Supplement, the interest factor for each such day is computed by dividing the
interest rate applicable to such day by 360 if the CD Rate, Commercial Paper
Rate, Eleventh District Cost of Funds Rate, Federal Funds Rate, LIBOR or Prime
Rate is an applicable Interest Rate Basis, or by the actual number of days in
the year if the CMT Rate or Treasury Rate is an applicable Interest Rate Basis.
As provided in the applicable Pricing Supplement,
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the interest factor for Notes for which the interest rate is calculated with
reference to two or more Interest Rate Bases will be calculated in each period
in the same manner as if only one of the applicable Interest Rate Bases applied
as specified in the applicable Pricing Supplement and the Notes.
Interest:
General. Each Note will bear interest in accordance with its terms. Unless
otherwise provided in the applicable Pricing Supplement, interest on each Note
will accrue from and including the Original Issue Date of such Note for the
first interest period or from the most recent Interest Payment Date (as defined
below) to which interest has been paid or duly provided for all subsequent
interest periods to but excluding applicable Interest Payment Date or the Stated
Maturity Date or date of earlier redemption or repayment, as the case may be
(the Stated Maturity Date or date of earlier redemption or repayment is referred
to herein as the "Maturity Date" with respect to the principal repayable on such
date).
If an Interest Payment Date or the Maturity Date with respect to any Fixed Rate
Note falls on a day that is not a Business Day (as defined below), the required
payment to be made on such day need not be made on such day, but may be made on
the next succeeding Business Day with the same force and effect as if made on
such day, and no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date or Maturity, as the case may be. If
an Interest Payment Date other than the Maturity Date with respect to any
Floating Rate Note would otherwise fall on a day that is not a Business Day,
such Interest Payment Date will be postponed to the next succeeding Business
Day, except that in the case of a Note for which LIBOR is an applicable Interest
Rate Basis, if such Business Day falls in the next succeeding calendar month,
such Interest Payment Date will be the immediately preceding Business Day. If
the Maturity Date with respect to any Floating Rate Note falls on a day that is
not a Business Day, the required payment to be made on such day need not be made
on such day, but may be made on the next succeeding Business Day with the same
force and effect as if made on such day, and no interest shall accrue from and
after such Maturity. Unless otherwise provided in the applicable Pricing
Supplement, "Business Day" means any day that is not a day on which banking
institutions are authorized or required by law, regulation or executive order to
close in The City of New York; provided, however, that, with respect to Notes
the payment of which is to be made in a currency
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other than U.S. dollars or composite currencies (such currency or composite
currency in which a Note is denominated is the "Specified Currency"), such day
is also not a day on which banking institutions are authorized or required by
law, regula tion or executive order to close in the Principal Financial Center
(as defined below) of the country issuing such Specified Currency or, in the
case of European Currency Units ("ECUs"), is not a day that is designated as an
ECU non-settlement day by the ECU Banking Association in Paris or otherwise
generally regarded in the ECU interbank market as a day on which payments on
ECUs shall not be made; provided, further, that, with respect to Notes for which
LIBOR is an applicable Interest Rate Basis, such day is also a London Business
Day (as defined below). "London Business Day" means (i) if the currency
(including composite currencies) specified in the applicable Pricing Supplement
as the currency (the "Index Currency") for which LIBOR is calculated is other
than ECU, any day on which dealings in such Index Currency are transacted in the
London interbank market or (ii) if the Index Currency is ECU, any day that is
not designated as an ECU non-settlement day by the ECU Banking Association in
Paris or otherwise generally regarded in the ECU interbank market as a day on
which payments on ECUs shall not be made. It being understood that if no such
currency or composite currency is specified in the applicable Pricing
Supplement, the Index Currency shall be U.S. dollars. "Principal Financial
Center" means the capital city of the country issuing the currency or composite
currency in which any payment in respect of the Notes is to be made or, solely
with respect to the calculation of LIBOR, the Index Currency, except that with
respect to U.S. dollars, Australian dollars, Deutsche marks, Dutch guilders,
Italian lire, Swiss francs and ECUs, the Principal Financial Center shall be The
City of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and Luxembourg,
respectively.
Regular Record Dates. Unless otherwise provided in the applicable Pricing
Supplement, the "Regular Record Date" for a Note shall be the date 15 calendar
days (whether or not a Business Day) preceding the applicable Interest Payment
Date.
Interest Payment Dates. Interest payments will be made on each Interest Payment
Date commencing with the first Interest Payment Date following the Original
Issue Date; provided, however, the first payment of interest on any Note
originally issued between a Regular Record Date and an Interest
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Payment Date will occur on the Interest Payment Date following the next
succeeding Regular Record Date.
Unless otherwise provided in the applicable Pricing Supplement, interest
payments on Fixed Rate Notes will be made semiannually in arrears on May 15 and
November 15 of each year and on the Maturity Date, while interest payments on
Floating Rate Notes will be made as specified in the applicable Pricing
Supplement.
Acceptance and Rejection of Offers from Solicitation as Agents:
If agreed upon by any Agent and the Company, then such Agent acting solely as
agent for the Company and not as principal will solicit purchases of the Notes.
Each Agent will communicate to the Company, orally or in writing, each
reasonable offer to purchase Notes solicited by such Agent on an agency basis,
other than those offers rejected by such Agent. Each Agent has the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be a breach of such Agent's
agreement contained in the Selling Agency Agreement. The Company has the sole
right to accept or reject any proposed purchase of Notes, in whole or in part,
and any such rejection shall not a breach of the Company's agreement contained
in the Selling Agency Agreement. Each Agent has agreed to make reasonable best
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company.
Preparation of Pricing Supplement:
If any offer to purchase a Note is accepted by the Company, the Company will
promptly prepare a Pricing Supplement reflecting the terms of such Note.
Information to be included in the Pricing Supplement shall include:
1. the name of the Company;
2. the title of the Notes;
3. the date of the Pricing Supplement and the date of the Prospectus to which
the Pricing Supplement relates;
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4. the name of the Offering Agent (as defined below);
5. whether such Notes are being sold to the Offering Agent as principal or to
an investor or other purchaser through the Offering Agent acting as agent
for the Company;
6. with respect to Notes sold to the Offering Agent as principal, whether such
Notes will be resold by the Offering Agent to investors and other purchasers
at (i) a fixed public offering price of a specified percentage of their
principal amount or (ii) at varying prices related to prevailing market
prices at the time of resale to be determined by the Offering Agent;
7. with respect to Notes sold to an investor or other purchaser through the
Offering Agent acting as agent for the Company, whether such Notes will be
sold at (i) 100% of their principal amount or (ii) a specified percentage of
their principal amount;
8. the Offering Agent's discount or commission;
9. Net proceeds to the Company;
10. the Principal Amount, Specified Currency, Original Issue Date, Stated
Maturity Date, Interest Payment Date(s), Authorized Denomination, Initial
Redemption Date, if any, Initial Redemption Percentage, if any, Annual
Redemption Percentage Reduction, if any, Optional Repayment Date(s), if any,
Exchange Rate Agent, if any, Default Rate, if any, and, in the case of Fixed
Rate Notes, the Interest Rate, and whether such Fixed Rate Note is an
Original Issue Discount Note (and, if so, the Issue Price), and, in the case
of Floating Rate Notes, the Interest Category, the Interest Rate Basis or
Bases, the Day Count Convention, Index Maturity (if applicable), Initial
Interest Rate, if any, Maximum Interest Rate, if any, Minimum Interest Rate,
if any, Initial Interest Reset Date, Interest Reset Dates, Spread and/or
Spread Multiplier, if any, and Calculation Agent; and
11. any other additional provisions of the Notes material to investors or other
purchasers of the Notes not otherwise specified in the Prospectus.
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The Company shall use its reasonable best efforts to send such Pricing
Supplement by telecopy or overnight express (for delivery by the close of
business on the applicable trade date, but in no event later than 11:00 a.m. New
York City time, on the Business Day following the applicable trade date) to the
Agent which made or presented the offer to purchase the applicable Note (in such
capacity, the "Offering Agent") and the Trustee at the following applicable
address: if to Merrill Lynch & Co., to: Tritech Services, 40 Colonial Drive,
Piscataway, New Jersey 08854, Attention: Prospectus Operations/ Susannah Putnam,
(908) 885-2769, telecopier: (908) 885-2774/5/6; if to Goldman, Sachs & Co., to:
Karen Robertson (212) 902-1482, telecopier (212) 902-0658; and if to Salomon
Brothers Inc, to: 8800 Hidden River Parkway, Tampa, Florida 33637, Attention:
Enrique Castro, (813) 558-7165, telecopier: (813) 558-4123. For record keeping
purposes, one copy of such Pricing Supplement shall also be mailed or telecopied
to Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
World Financial Center, North Tower, 10th Floor, New York, New York, 10281-1310,
Attention: MTN Product Management, (212) 449-7476, telecopier: (212) 449-2234,
with a copy to Mayer, Brown & Platt, 190 South LaSalle Street, Chicago, Illinois
60603-3441, Attention: Edward S. Best, telecopier: (312) 701-7711.
In each instance that a Pricing Supplement is prepared, the Offering Agent will
provide a copy of such Pricing Supplement to each investor or purchaser of the
relevant Notes or its agent. Pursuant to Rule 434 ("Rule 434") of the
Securities Act of 1933, as amended, the Pricing Supplement may be delivered
separately from the Prospectus. Outdated Pricing Supplements (other than those
retained for files) will be destroyed.
Settlement:
The receipt of immediately available funds by the Company in payment for a Note
and the authentication and delivery of such Note shall, with respect to such
Note, constitute "settlement". Offers accepted by the Company will be settled
three Business Days, or at such time as the purchaser, the applicable Agent and
the Company shall agree, pursuant to the timetable for settlement set forth in
Parts II and III hereof under "Settlement Procedure Timetable" with respect to
Global Notes and Certificated Notes, respectively (each such date fixed for
settlement is hereinafter referred to as a "Settlement Date"). If procedures A
and B of the applicable Settlement Procedures with respect to a particular offer
are
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not completed on or before the time set forth under the applicable "Settlement
Procedures Timetable", such offer shall not be settled until the Business Day
following the completion of settlement procedures A and B or such later date as
the purchaser and the Company shall agree.
The foregoing settlement procedures may be modified with respect to any purchase
of Notes by an Agent as principal if so agreed by the Company and such Agent.
Procedure for Changing Rates or Other Variable Terms:
When a decision has been reached to change the interest rate or any other
variable term on any Notes being sold by the Company, the Company will promptly
advise the Agents and the Trustee by facsimile transmission and the Agents will
forthwith suspend solicitation of offers to purchase such Notes. The Agents will
telephone the Company with recommendations as to the changed interest rates or
other variable terms. At such time as the Company notifies the Agents and the
Trustee of the new interest rates or other variable terms, the Agents may resume
solicitation of offers to purchase such Notes. Until such time, only
"indications of interest" may be recorded. Immediately after acceptance by the
Company of an offer to purchase Notes at a new interest rate or new variable
term, the Company, the Offering Agent and the Trustee shall follow the
procedures set forth under the applicable "Settlement Procedures".
Suspension of Solicitation; Amendment or Supplement:
The Company may instruct the Agents to suspend solicitation of offers to
purchase Notes at any time. Upon receipt of such instructions, the Agents will
forthwith suspend solicitation of offers to purchase from the Company until such
time as the Company has advised the Agents that solicitation of offers to
purchase may be resumed. If the Company decides to amend or supplement the
Registration Statement or the Prospectus (other than to establish or change
interest rates or formulas, maturities, prices or other similar variable terms
with respect to the Notes), it will promptly advise the Agents and will furnish
the Agents and their counsel with copies of the proposed amendment or
supplement. Copies of such amendment or supplement will be delivered or mailed
to the Agents, their counsel and the Trustee in quantities which such
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parties may reasonably request at the following respective addresses: Merrill
Lynch & Co., World Financial Center, North Tower, 10th Floor, New York, New York
10281-1310, Attention: MTN Product Management, (212) 449-7476, telecopier: (212)
449-2234; Goldman, Sachs & Co., 85 Broad St., Sub-concourse, New York, New York
10004, Attention: Prospectus Department (212) 902-1171, telecopier (212) 902
9316; and Salomon Brothers Inc, Brooklyn Army Terminal, 140 5th Street, 8th
Floor, Brooklyn, New York 11220, Attention: Prospectus Department, with a copy
to Pam Kendall, Salomon Brothers Inc, 7 World Trade Center, 32nd Floor, New
York, New York 10048, (212) 783-5897, telecopier: (212) 783-2274. For record
keeping purposes, one copy of each such amendment or supplement shall also be
mailed or telecopied to Mayer, Brown & Platt, 190 South LaSalle Street, Chicago,
Illinois 60603-3441, Attention: Edward S. Best, telecopier: (312) 701-7711.
In the event that at the time the solicitation of offers to purchase from the
Company is suspended (other than to establish or change interest rates or
formulas, maturities, prices or other similar variable terms with respect to the
Notes) there shall be any offers to purchase Notes that have been accepted by
the Company which have not been settled, the Company will promptly advise the
Offering Agent and the Trustee whether such offers may be settled and whether
copies of the Prospectus as theretofore amended and/or supplemented as in effect
at the time of the suspension may be delivered in connection with the settlement
of such offers. The Company will have the sole responsibility for such decision
and for any arrangements which may be made in the event that the Company
determines that such offers may not be settled or that copies of such Prospectus
may not be so delivered.
Delivery of Prospectus and applicable Pricing Supplement:
A copy of the most recent Prospectus and the applicable Pricing Supplement,
which pursuant to Rule 434 may be delivered separately from the Prospectus, must
accompany or precede the earlier of (a) the written confirmation of a sale sent
to an investor or other purchaser or its agent and (b) the delivery of Notes to
an investor or other purchaser or its agent.
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Authenticity of Signatures:
The Agents will have no obligation or liability to the Company or the Trustee in
respect of the authenticity of the signature of any officer, employee or agent
of the Company or the Trustee on any Note.
Documents Incorporated by Reference:
The Company shall supply the Agents with an adequate supply of all documents
incorporated by reference in the Registration Statement and the Prospectus.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry
form for eligibility in the book-entry system maintained by DTC, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to DTC, dated __________, 1996,
and a Certificate Agreement, dated _______________, 19__, between the Trustee
and DTC, as amended (the "Certificate Agreement"), and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance:
All Fixed Rate Notes issued in book-entry form having the same Original Issue
Date, Specified Currency, Interest Rate, Default Rate, Interest Payment Dates,
redemption and/or repayment terms, if any, and Stated Maturity Date
(collectively, the "Fixed Rate Terms") will be represented initially by a single
Global Note; and all Floating Rate Notes issued in book-entry form having the
same Original Issue Date, Specified Currency, Interest Category, formula for the
calculation of interest (including the Interest Rate Basis or Bases, which may
be the CD Rate, the CMT Rate, the Commercial Paper Rate, the Eleventh District
Cost of Funds Rate, the Federal Funds Rate, LIBOR, the Prime Rate or the
Treasury Rate or any other interest rate basis or formula, and Spread and/or
Spread Multiplier, if any), Day Count Convention, Initial Interest Rate, Default
Rate, Index Maturity (if applicable), Minimum Interest Rate, if any, Maximum
Interest Rate, if any, redemption and/or repayment terms, if any, Interest
Payment Dates, Initial Interest Reset Date, Interest Reset Dates and Stated
Maturity Date(collectively, the "Floating Rate Terms") will be represented
initially by a single Global Note.
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For other variable terms with respect to the Fixed Rate Notes and Floating Rate
Notes, see the Prospectus and the applicable Pricing Supplement.
Owners of beneficial interests in Global Notes will be entitled to physical
delivery of Certificated Notes equal in principal amount to their respective
beneficial interests only upon certain limited circumstances described in the
Prospectus.
Identification:
The Company has arranged with the CUSIP Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for the reservation of one series of
CUSIP numbers, which series consists of approximately 900 CUSIP numbers which
have been reserved for and relate to Global Notes and the Company has delivered
to each of the Trustee and DTC such list of such CUSIP numbers. The Company will
assign CUSIP numbers to Global Notes as described below under Settlement
Procedure B. DTC will notify the CUSIP Service Bureau periodically of the CUSIP
numbers that the Company has assigned to Global Notes. The Trustee will notify
the Company at any time when fewer than 100 of the reserved CUSIP numbers remain
unassigned to Global Notes, and, if it deems necessary, the Company will reserve
and obtain additional CUSIP numbers for assignment to Global Notes. Upon
obtaining such additional CUSIP numbers, the Company will deliver a list of such
additional numbers to the Trustee and DTC. Notes issued in book-entry form in
excess of $200,000,000 (or the equivalent thereof in one or more foreign or
composite currencies) aggregate principal amount and otherwise required to be
represented by the same Global Note will instead be represented by two or more
Global Notes which shall all be assigned the same CUSIP number.
Registration:
Unless otherwise specified by DTC, each Global Note will be registered in the
name of Cede & Co., as nominee for DTC, on the register maintained by the
Trustee under the Indenture. The beneficial owner of a Note issued in book-entry
form (i.e., an owner of a beneficial interest in a Global Note) (or one or more
indirect participants in DTC designated by such owner) will designate one or
more participants in DTC (with respect to such Note issued in book-entry form,
the "Participants") to act as agent for such beneficial owner in connection with
the book-entry system maintained by DTC, and DTC will record in book-entry form,
in accordance with instructions provided by such Participants, a credit balance
with respect to such Note issued in book-entry form in the
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account of such Participants. The ownership interest of such beneficial owner
in such Note issued in book-entry form will be recorded through the records of
such Participants or through the separate records of such Participants and one
or more indirect participants in DTC.
Transfers:
Transfers of beneficial ownership interests in a Global Note will be
accomplished by book entries made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such Global Note.
Exchanges:
The Trustee may deliver to DTC and the CUSIP Service Bureau at any time a
written notice specifying (a) the CUSIP numbers of two or more Global Notes
outstanding on such date that represent Global Notes having the same Fixed Rate
Terms or Floating Rate Terms, as the case may be (other than Original Issue
Dates), and for which interest has been paid to the same date; (b) a date,
occurring at least 30 days after such written notice is delivered and at least
30 days before the next Interest Payment Date for the related Notes issued in
book-entry form, on which such Global Notes shall be exchanged for a single
replacement Global Note; and (c) a new CUSIP number, obtained from the Company,
to be assigned to such replacement Global Note. Upon receipt of such a notice,
DTC will send to its Participants (including the Trustee) a written
reorganization notice to the effect that such exchange will occur on such date.
Prior to the specified exchange date, the Trustee will deliver to the CUSIP
Service Bureau written notice setting forth such exchange date and the new CUSIP
number and stating that, as of such exchange date, the CUSIP numbers of the
Global Notes to be exchanged will no longer be valid. On the specified exchange
date, the Trustee will exchange such Global Notes for a single Global Note
bearing the new CUSIP number and the CUSIP numbers of the exchanged Notes will,
in accordance with CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. Notwithstanding the foregoing, if the Global Notes to be
exchanged exceed $200,000,000 (or the equivalent thereof in one or more foreign
or composite currencies) in aggregate principal amount, one replacement Note
will be authenticated and issued to represent each $200,000,000 (or the
equivalent thereof in one or more foreign or composite currencies) in aggregate
principal amount of the exchanged Global Notes and an additional Global Note or
Notes will be authenticated and issued to
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represent any remaining principal amount of such Global Notes (See
"Denominations" below).
Denominations:
Unless otherwise provided in the applicable Pricing Supplement, Notes issued in
book-entry form will be issued in denominations of $1,000 and integral multiples
thereof. Global Notes will not be denominated in excess of $200,000,000 (or the
equivalent thereof in one or more foreign or composite currencies) aggregate
principal amount. If one or more Notes are issued in book-entry form in excess
of $200,000,000 (or the equivalent thereof in one or more foreign or composite
currencies) aggregate principal amount and would, but for the preceding
sentence, be represented by a single Global Note, then one Global Note will be
issued to represent each $200,000,000 (or the equivalent thereof in one or more
foreign or composite currencies) in aggregate principal amount of such Notes
issued in book-entry form and an additional Global Note or Notes will be issued
to represent any remaining aggregate principal amount of such Note or Notes
issued in book-entry form. In such a case, each of the Global Notes representing
Notes issued in book-entry form shall be assigned the same CUSIP number.
Payments of Principal and Interest:
Payments of Interest Only. Promptly after each Regular Record Date, the Trustee
will deliver to the Company and DTC a written notice specifying by CUSIP number
the amount of interest to be paid on each Global Note on the following Interest
Payment Date (other than an Interest Payment Date coinciding with the Maturity
Date) and the total of such amounts. DTC will confirm the amount payable on each
Global Note on such Interest Payment Date by reference to the daily bond reports
published by Standard & Poor's Corporation. On such Interest Payment Date, the
Company will pay to the Trustee in immediately available funds an amount
sufficient to pay the interest then due and owing on the Global Notes, and upon
receipt of such funds from the Company, the Trustee in turn will pay to DTC such
total amount of interest due on such Global Notes (other than on the Maturity
Date) which is payable in U.S. dollars, at the times and in the manner set forth
below under "Manner of Payment". The Trustee shall make payment of that amount
of interest due and owing on any Global Notes that Participants have elected to
receive in foreign or composite currencies directly to such Participants.
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Notice of Interest Rates. Promptly after each Interest Determination Date or
Calculation Date, as the case may be, for Floating Rate Notes issued in book-
entry form, the Trustee will notify each of Moody's Investors Service, Inc. and
Standard & Poor's Corporation of the interest rates determined as of such
Interest Determination Date.
Payments at Maturity. On or about the first Business Day of each month, the
Trustee will deliver to the Company and DTC a written list of principal,
premium, if any, and interest to be paid on each Global Note maturing or
otherwise becoming due in the following month. The Trustee, the Company and DTC
will confirm the amounts of such principal, premium, if any, and interest
payments with respect to each such Global Note on or about the fifth Business
Day preceding the Maturity Date of such Global Note. On the Maturity Date, the
Company will pay to the Trustee in immediately available funds an amount
sufficient to make the required payments, and upon receipt of such funds the
Trustee in turn will pay to DTC the principal amount of Global Notes, together
with premium, if any, and interest due on the Maturity Date, which are payable
in U.S. dollars, at the times and in the manner set forth below under "Manner of
Payment". The Trustee shall make payment of the principal, premium, if any, and
interest to be paid on the Maturity Date of each Global Note that Participants
have elected to receive in foreign or composite currencies directly to such
Partici pants. Promptly after (i) payment to DTC of the principal, premium, if
any, and interest due on the Maturity Date of such Global Note which are payable
in U.S. dollars and (ii) payment of the principal, premium, if any, and interest
due on the Maturity Date of such Global Note to those Participants who have
elected to receive such payments in foreign or composite currencies, the Trustee
will cancel such Global Note and deliver it to the Company with an appropriate
debit advice. On the first Business Day of each month, the Trustee will deliver
to the Company a written statement indicating the total principal amount of
outstanding Global Notes as of the close of business on the immediately
preceding Business Day.
Manner of Payment. The total amount of any principal, premium, if any, and
interest due on Global Notes on any Interest Payment Date or the Maturity Date,
as the case may be, which is payable in U.S. dollars shall be paid by the
Company to the Trustee in funds available for use by the Trustee no later than
10:00 a.m., New York City time, on
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such date. The Company will make such payment on such Global Notes to an account
specified by the Trustee. Upon receipt of such funds, the Trustee will pay by
separate wire transfer (using Fedwire message entry instructions in a form
previously specified by DTC) to an account at the Federal Reserve Bank of New
York previously specified by DTC, in funds available for immediate use by DTC,
each payment in U.S. dollars of principal, premium, if any, and interest due on
Global Notes on such date. Thereafter on such date, DTC will pay, in accordance
with its SDFS operating procedures then in effect, such amounts in funds
available for immediate use to the respective Participants in whose names the
beneficial interests in such Global Notes are recorded in the book-entry system
maintained by DTC. Neither the Company nor the Trustee shall have any
responsibility or liability for the payment in U.S. dollars by DTC of the
principal of, or premium, if any, or interest on, the Global Notes. The Trustee
shall make all payments of principal, premium, if any, and interest on each
Global Note that Participants have elected to receive in foreign or composite
currencies directly to such Participants.
Withholding Taxes. The amount of any taxes required under applicable law to be
withheld from any interest payment on a Global Note will be determined and
withheld by the Participant, indirect participant in DTC or other Person
responsible for forwarding payments and materials directly to the beneficial
owner of such Global Note.
Settlement Procedures:
Settlement Procedures with regard to each Note in book-entry form sold by an
Agent, as agent of the Company, or purchased by an Agent, as principal, will be
as follows:
A: The Offering Agent will advise the Company by telephone, confirmed by
facsimile, of the following settlement information:
1. Principal amount, Authorized Denomination, and
Specified Currency.
2. Exchange Rate Agent, if any.
3. (a) Fixed Rate Notes:
(i) Interest Rate.
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(ii) Interest Payment Dates.
(iii) Whether such Note is being issued with Original Issue
Discount and, if so, the terms thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier, if any.
(v) Initial Interest Reset Date or Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum Interest Rates, if any.
(ix) Day Count Convention.
(viii) Calculation Agent.
4. Price to public, if any, of such Note (or whether such Note is being
offered at varying prices relating to prevailing market prices at time
of resale as determined by the Offering Agent).
5. Trade Date.
6. Settlement Date (Original Issue Date).
7. Stated Maturity Date.
8. Redemption provisions, if any.
9. Repayment provisions, if any.
B-17
<PAGE>
10. Default Rate, if any.
11. Net proceeds to the Company.
12. The Offering Agent's discount or commission.
13. Whether such Note is being sold to the Offering Agent as principal or
to an investor or other purchaser through the Offering Agent acting as
agent for the Company.
14. Such other information specified with respect to such Note (whether by
Addendum or otherwise).
B. The Company will assign a CUSIP number to the Global Note representing such
Note and then advise the Trustee by facsimile transmission or other
electronic transmission of the above settlement information received from
the Offering Agent, such CUSIP number and the name of the Offering Agent.
The Company will also advise the Offering Agent of the CUSIP number assigned
to the Global Note.
C. The Trustee will communicate to DTC and the Offering Agent through DTC's
Participant Terminal System a pending deposit message specifying the
following settlement information:
1. The information set forth in the Settlement Procedure A.
2. Identification numbers of the participant accounts maintained by DTC on
behalf of the Trustee and the Offering Agent.
3. Identification of the Global Note as a Fixed Rate Global Note or
Floating Rate Global Note.
4. Initial Interest Payment Date for such Note, number of days by which
such date succeeds the related record date for DTC purposes (or, in the
case of Floating Rate Notes which reset daily or weekly, the date five
calendar days preceding the Interest Payment Date) and, if then
calculable, the amount of interest payable on such Interest
B-18
<PAGE>
Payment Date (which amount shall have been confirmed by the Trustee).
5. CUSIP number of the Global Note representing such Note.
6. Whether such Global Note represents any other Notes issued or to be
issued in book-entry form.
DTC will arrange for each pending deposit message described above to be
transmitted to Standard & Poor's Corporation, which will use the information
in the message to include certain terms of the related Global Note in the
appropriate daily bond report published by Standard & Poor's Corporation.
D. The Trustee will complete and authenticate the Global Note representing
such Note.
E. DTC will credit such Note to the participant account of the Trustee
maintained by DTC.
F. The Trustee will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit such Note to the Trustee's
participant account and credit such Note to the participant account of the
Offering Agent maintained by DTC and (ii) to debit the settlement account of
the Offering Agent and credit the settlement account of the Trustee
maintained by DTC, in an amount equal to the price of such Note less such
Offering Agent's discount or underwriting commission, as applicable. Any
entry of such a deliver order shall be deemed to constitute a representation
and warranty by the Trustee to DTC that (i) the Global Note representing
such Note has been issued and authenticated and (ii) the Trustee is holding
such Global Note pursuant to the Certificate Agreement.
G. In the case of Notes in book-entry form sold through the Offering Agent, as
agent, the Offering Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such Note to the
Offering Agent's participant account and credit such Note to the participant
account of the Participants maintained by DTC and (ii) to debit the
settlement accounts of such Participants and credit the settlement
B-19
<PAGE>
account of the Offering Agent maintained by DTC in an amount equal to the
initial public offering price of such Note.
H. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures F and G will be settled in accordance with SDFS
operating procedures in effect on the Settlement Date.
I. Upon receipt, the Trustee will pay the Company, by wire transfer of
immediately available funds to an account specified by the Company to the
Trustee from time to time, the amount transferred to the Trustee in
accordance with Settlement Procedure F.
J. The Trustee will send a copy of the Global Note by first class mail to
the Company together with a statement setting forth the principal amount of
Notes Outstanding as of the related Settlement Date after giving effect to
such transaction and all other offers to purchase Notes of which the Company
has advised the Trustee but which have not yet been settled.
K. If such Note was sold through the Offering Agent, as agent, the Offering
Agent will confirm the purchase of such Note to the investor or other
purchaser either by transmitting to the Participant with respect to such
Note a confirmation order through DTC's Participant Terminal System or by
mailing a written confirmation to such investor or other purchaser.
Settlement Procedures Timetable:
For offers to purchase Notes accepted by the Company, Settlement Procedures A
through K set forth above shall be completed as soon as possible following the
trade but not later than the respective times (New York City time) set forth
below:
Settlement
Procedure Time
- ---------- ----
A 11:00 a.m. on the trade date or within one
hour following the trade
B 12:00 noon on the trade date or within one
hour following the trade
B-20
<PAGE>
C No later than the close of business on the trade date
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement Date
F-G No later than 2:00 p.m. on Settlement Date
H 4:00 p.m. on Settlement Date
I-J 5:00 p.m. on Settlement Date
Settlement Procedure H is subject to extension in accordance with any extension
of Fedwire closing deadlines and in the other events specified in the SDFS
operating procedures in effect on the Settlement Date.
If settlement of a Note issued in book-entry form is rescheduled or canceled,
the Trustee will deliver to DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than 5:00 p.m., New York City
time, on the Business Day immediately preceding the scheduled Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a Note
issued in book-entry form pursuant to Settlement Procedure F, the Trustee may
deliver to DTC, through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to debit such Note to the
participant account of the Trustee maintained at DTC. DTC will process the
withdrawal message, provided that such participant account contains a principal
amount of the Global Note representing such Note that is at least equal to the
principal amount to be debited. If withdrawal messages are processed with
respect to all the Notes represented by a Global Note, the Trustee will mark
such Global Note "canceled", make appropriate entries in its records and send
certification of destruction of such canceled Global Note to the Company. The
CUSIP number assigned to such Global Note shall, in accordance with CUSIP
Service Bureau procedures, be canceled and not immediately reassigned. If
withdrawal messages are processed with respect to a portion of the Notes
represented by a Global Note, the Trustee will exchange such Global Note for two
Global Notes, one of which shall represent the Global Notes for which withdrawal
messages are processed and shall be canceled immediately after issuance and the
other of which shall represent the other Notes previously represented by the
surrendered Global Note
B-21
<PAGE>
and shall bear the CUSIP number of the surrendered Global Note.
In the case of any Note in book-entry form sold through the Offering Agent, as
agent, if the purchase price for any such Note is not timely paid to the
Participants with respect thereto by the beneficial investor or other purchaser
thereof (or a person, including an indirect participant in DTC, acting on behalf
of such investor or other purchaser), such Participants and, in turn, the
related Offering Agent may enter SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered pursuant to Settlement Procedures F
and G, respectively. Thereafter, the Trustee will deliver the withdrawal message
and take the related actions described in the preceding paragraph. If such
failure shall have occurred for any reason other than default by the applicable
Offering Agent to perform its obligations hereunder or under the Selling Agency
Agreement, the Company will reimburse such Offering Agent on an equitable basis
for its reasonable loss of the use of funds during the period when the funds
were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect to a Note
in book-entry form, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle with
respect to a Note that was to have been represented by a Global Note also
representing other Notes, the Trustee will provide, in accordance with
Settlement Procedure D, for the authentication and issuance of a Global Note
representing such remaining Notes and will make appropriate entries in its
records.
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations:
Unless otherwise provided in the applicable Pricing Supplement, the Certificated
Notes will be issued in denominations of $1,000 and integral multiples thereof.
Payments of Principal, Premium, if any, and Interest:
Upon presentment and delivery of the Certificated Note, the Trustee upon receipt
of immediately available funds from the Company will pay the principal of,
premium, if any, and
B-22
<PAGE>
interest on, each Certificated Note on the Maturity Date in immediately
available funds. All interest payments on a Certificated Note, other than
interest due on the Maturity Date, will be made by check mailed to the address
of the person entitled thereto as such address shall appear in the Security
Register; provided, however, that Holders of $10,000,000 or more in aggregate
principal amount of Certificated Notes (whether having identical or different
terms and provisions) shall be entitled to receive such interest payments by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15
calendar days prior to the applicable Interest Payment Date.
The Trustee will provide monthly to the Company a list of the principal,
premium, if any, and interest to be paid on Certificated Notes maturing in the
next succeeding month. The Trustee will be responsible for withholding taxes on
interest paid as required by applicable law.
Certificated Notes presented to the Trustee on the Maturity Date for payment
will be canceled by the Trustee. All canceled Certificated Notes held by the
Trustee shall be destroyed, and the Trustee shall furnish to the Company a
certificate with respect to such destruction.
Settlement Procedures:
Settlement Procedures with regard to each Certificated Note purchased by an
Agent, as principal, or through an Agent, as agent, shall be as follows:
A. The Offering Agent will advise the Company by telephone, confirmed by
facsimile, of the following Settlement information with regard to each
Certificated Note:
1. Exact name in which the Certificated Note(s) is to be registered
(the "Registered Owner").
2. Exact address or addresses of the Registered Owner for delivery,
notices and payments of principal, premium, if any, and interest.
3. Taxpayer identification number of the Registered Owner.
B-23
<PAGE>
4. Principal amount, Authorized Denomination and Specified Currency.
5. Exchange Rate Agent, if any.
6. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is being issued with Original Issue
Discount and, if so, the terms thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier, if any.
(v) Initial Interest Reset Date and Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum Interest Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
7. Price to public of such Certificated Note (or whether such Note is
being offered at varying prices relating to prevailing market
prices at time of resale as determined by the Offering Agent).
B-24
<PAGE>
8. Trade Date.
9. Settlement Date (Original Issue Date).
10. Stated Maturity Date.
11. Redemption provisions, if any.
12. Repayment provisions, if any.
13. Default Rate, if any.
14. Net proceeds to the Company.
15. The Offering Agent's discount or commission.
16. Whether such Note is being sold to the Offering Agent as principal
or to an investor or other purchaser through the Offering Agent
acting as agent for the Company.
17. Such other information specified with respect to such Note (whether
by Addendum or otherwise).
B. After receiving such settlement information from the Offering Agent, the
Company will advise the Trustee of the above settlement information by
facsimile transmission confirmed by telephone. The Company will cause the
Trustee to complete, authenticate and deliver the Certificated Note.
C. The Trustee will complete the Certificated Note in the form approved by the
Company and the Offering Agent, and will make three copies thereof (herein
called "Stub 1", "Stub 2" and "Stub 3"):
1. Certificated Note with the Offering Agent's confirmation, if traded on
a principal basis, or the Offering Agent's customer confirmation, if
traded on an agency basis.
2. Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Company.
B-25
<PAGE>
D. With respect to each trade, the Trustee will deliver the Certificated Note
and Stub 2 thereof to the Offering Agent at the following applicable
address: Merrill Lynch, Pierce, Fenner & Smith Incorporated, Merrill Lynch
Money Markets Clearance, 55 Water Street, Third Floor, N.S.C.C. Window, New
York, New York 10041, Attention: Al Mitchell, (212) 558-2405, telecopier:
(212) 558-2457; if to Goldman, Sachs & Co., Corporate Bond Operations, 85
Broad St., 6th Floor, New York, New York 10004, Attention: Mike Mosley (212)
902-8094, telecopier (212) 902-5178; and, if to Salomon Brothers Inc, Bank
of New York, 1 Wall Street, New York, New York 10005, Attention: Dealer
Clearance, 3rd Floor. The Trustee will keep Stub 1. The Offering Agent will
acknowledge receipt of the Certificated Note through a broker's receipt and
will keep Stub 2. Delivery of the Certificated Note will be made only
against such acknowledgment of receipt. Upon determination that the
Certificated Note has been authorized, delivered and completed as
aforementioned, the Offering Agent will wire the net proceeds of the
Certificated Note after deduction of its applicable commission to the
Company pursuant to standard wire instructions given by the Company.
E. In the case of a Certificated Note sold through the Offering Agent, as
agent, the Offering Agent will deliver such Certificated Note (with the
confirmation) to the purchaser against payment in immediately available
funds.
F. The Trustee will send Stub 3 to the Company.
Settlement Procedures Timetable:
For offers to purchase Certificated Notes accepted by the Company, Settlement
Procedures A through F set forth above shall be completed as soon as possible
following the trade but not later than the respective times (New York City time)
set forth below:
Settlement
Procedure Time
- ---------- ----
A 11:00 a.m. on the trade date or within one hour following the
trade
B-26
<PAGE>
B 12:00 noon on the trade date or within one hour following the
trade
C-D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
Failure to Settle:
In the case of Certificated Notes sold through the Offering Agent, as agent, if
an investor or other purchaser of a Certificated Note from the Company shall
either fail to accept delivery of or make payment for such Certificated Note on
the date fixed for settlement, the Offering Agent will forthwith notify the
Trustee and the Company by telephone, confirmed in writing, and return such
Certificated Note to the Trustee.
The Trustee, upon receipt of such Certificated Note from the Offering Agent,
will immediately advise the Company and the Company will promptly arrange to
credit the account of the Offering Agent in an amount of immediately available
funds equal to the amount previously paid to the Company by such Offering Agent
in settlement for such Certificated Note. Such credits will be made on the
Settlement Date if possible, and in any event not later than the Business Day
following the Settlement Date; provided that the Company has received notice on
the same day. If such failure shall have occurred for any reason other than
failure by such Offering Agent to per form its obligations hereunder or under
the Selling Agency Agreement, the Company will reimburse such Offering Agent on
an equitable basis for its reasonable loss of the use of funds during the period
when the funds were credited to the account of the Company. Immediately upon
receipt of the Certificated Note in respect of which the failure occurred, the
Trustee will cancel and destroy such Certificated Note, make appropriate entries
in its records to reflect the fact that such Certificated Note was never issued,
and accordingly notify in writing the Company.
B-27
<PAGE>
EXHIBIT B
TRIBUNE COMPANY
Medium Term Notes, Series D
Due Nine Months or More from Date of Issue
TERMS AGREEMENT
_______________, 19__
Tribune Company
435 North Michigan Avenue
Chicago, Illinois 60611
Attention: David J. Granat
Vice President and Treasurer
Subject in all respects to the terms and conditions of the Selling Agency
Agreement (the "Agreement") dated April , 1996, among Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co. and
Salomon Brothers Inc and you, the undersigned agrees to purchase the following
Notes of TRIBUNE COMPANY:
Specified Currency:
Aggregate Principal Amount:
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Purchase Price: % of Principal Amount
Purchase Date and Time:
Place for Delivery of Notes
B-1
<PAGE>
and Payment Therefor:
Method of Payment:
B-2
<PAGE>
Other Terms:
Modification, if any, in
the requirements to
deliver the documents
specified in Section 6(b)
of the Agreement:
Period during which additional
Notes may not be sold pursuant
to Section 4(1) of the Agreement:
[Purchaser]
By:
-------------------------------
Accepted:
TRIBUNE COMPANY
By:
---------------------------
Title:
B-2
<PAGE>
- --------------------------------------------------------------------------------
TRIBUNE COMPANY,
ISSUER
AND
CONTINENTAL BANK, NATIONAL ASSOCIATION,
TRUSTEE
_____________________________
INDENTURE
DATED AS OF MARCH 1, 1992
______________________________
- --------------------------------------------------------------------------------
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture
dated as of March 1, 1992 between Tribune Company and Continental Bank, National
Association.
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
<S> <C>
(S) 310 (a)(1) ................................. 6.09
(a)(2) ................................. 6.09
(a)(3) ................................. Not Applicable
(a)(4) ................................. Not Applicable
(a)(5) ................................. 6.09
(b) ................................. 6.08, 6.10
(S) 311 (a) ................................. 6.13(a)
(b) ................................. 6.13(b)
(b)(2) ................................. 7.03(a)(2)
................................. 7.03(b)
(S) 312 (a) ................................. 7.01, 7.02(a)
(b) ................................. 7.02(b)
(c) ................................. 7.02(b)
(S) 313 (a) ................................. 7.03(a)
(b) ................................. 7.03(b)
(c) ................................. 7.03(a), 7.03(b)
(d) ................................. 7.04(c)
(S) 314 (a) ................................. 7.04
(a)(4) ................................. 10.09
(b) ................................. Not Applicable
(c)(1) ................................. 1.02
(c)(2) ................................. 1.02
(c)(3) ................................. Not Applicable
(d) ................................. Not Applicable
(e) ................................. 1.02
(S) 315 (a) ................................. 6.01(a)
(b) ................................. 6.02
................................. 7.03(a)(6)
(c) ................................. 6.01(b)
(d) ................................. 6.01(c)
(d)(1) ................................. 6.01(a), 601(c)
(d)(2) ................................. 6.01(c)(2)
(d)(3) ................................. 6.01(c)(3)
(e) ................................. 5.14
(S) 316 (a) ................................. 1.01
(a)(1)(A) ................................. 5.02, 5.12
(a)(1)(B) ................................. 5.02, 5.13
(a)(2) ................................. Not Applicable
(b) ................................. 5.08
(c) ................................. 1.04
(S) 317 (a)(1) ................................. 5.03
(a)(2) ................................. 5.04
(b) ................................. 10.03
(S) 318 (a) ................................. 1.07
</TABLE>
____________________
NOTE: This reconciliation and tie shall not, for any purpose, deemed to be a
part of the Indenture.
-i-
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
RECITALS OF THE COMPANY.................................................. 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 1
SECTION 1.01. Definitions............................................... 1
Act....................................................... 2
Affiliate................................................. 2
Authenticating Agent...................................... 2
Board of Directors........................................ 2
Board Resolution.......................................... 2
Business Day.............................................. 2
Commission................................................ 2
Company................................................... 3
Company Request or Company Order.......................... 3
Consolidated Subsidiary................................... 3
Consolidated Net Tangible Assets.......................... 3
Corporate Trust Office.................................... 3
Corporation............................................... 3
Currency.................................................. 3
Depository................................................ 3
Discharged................................................ 3
Dollar or "$"............................................. 3
ECU....................................................... 3
European Communities...................................... 4
Event of Default.......................................... 4
Fixed Rate Security....................................... 4
Floating Rate Security.................................... 4
Foreign Currency.......................................... 4
Global Security........................................... 4
Holder.................................................... 4
Indebtedness.............................................. 4
Indenture................................................. 4
Mortgage.................................................. 4
Net Worth................................................. 4
Officers' Certificate..................................... 4
Opinion of Counsel........................................ 5
Original Issue Discount Security.......................... 5
Outstanding............................................... 5
Paying Agent.............................................. 6
Person.................................................... 6
Predecessor Security...................................... 6
Principal Property........................................ 6
Redemption Date........................................... 6
Redemption Price.......................................... 6
</TABLE>
____________________
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-ii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Responsible Officer....................................... 6
Restricted Subsidiary..................................... 7
Sale and Lease-Back Transaction........................... 7
Securities................................................ 7
Security Register......................................... 7
Significant Subsidiary.................................... 7
Subsidiary................................................ 7
Trustee................................................... 7
Trust Indenture Act....................................... 7
Value..................................................... 7
Vice President............................................ 8
United States............................................. 8
U.S. Government Obligations............................... 8
SECTION 1.02. Compliance Certificates and Opinions...................... 8
SECTION 1.03. Form of Documents Delivered to Trustee.................... 9
SECTION 1.04. Acts of Holders........................................... 9
SECTION 1.05. Notices, Etc., to Trustee and Company..................... 11
SECTION 1.06. Notice to Holders; Waiver................................. 11
SECTION 1.07. Conflict with Trust Indenture Act......................... 12
SECTION 1.08. Effect of Headings and Table of Contents.................. 12
SECTION 1.09. Successors and Assigns.................................... 12
SECTION 1.10. Separability Clause....................................... 12
SECTION 1.11. Benefits of Indenture..................................... 12
SECTION 1.12. Governing Law............................................. 12
SECTION 1.13. Legal Holidays............................................ 12
SECTION 1.14. Incorporators, Stockholders, Officers and
Directors Exempt from Individual Liability.............. 13
ARTICLE II
SECURITY FORMS
SECTION 2.01. Forms Generally........................................... 13
SECTION 2.02. Form of Trustee's Certificate of Authentication........... 14
SECTION 2.03. Securities Issuable in the Form of a Global Security...... 14
ARTICLE III
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series...................... 17
SECTION 3.02. Denominations............................................. 20
SECTION 3.03. Execution, Authentication, Delivery and Dating............ 20
SECTION 3.04. Temporary Securities...................................... 23
SECTION 3.05. Registration, Registration of Transfer and Exchange....... 23
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.......... 24
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 3.07. Payment of Interest; Interest Rights Preserved............ 25
SECTION 3.08. Persons Deemed Owners..................................... 26
SECTION 3.09. Cancellation.............................................. 26
SECTION 3.10. Computation of Interest................................... 26
SECTION 3.11. Currency of Payments in Respect of Securities............. 27
SECTION 3.12. Judgments................................................. 27
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture................... 28
SECTION 4.02. Application of Trust Money................................ 29
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default......................................... 30
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment........ 32
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee................................................. 33
SECTION 5.04. Trustee May File Proofs of Claim.......................... 34
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities.............................................. 35
SECTION 5.06. Application of Money Collected............................ 36
SECTION 5.07. Limitation on Suits....................................... 36
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................... 37
SECTION 5.09. Restoration of Rights and Remedies........................ 37
SECTION 5.10. Rights and Remedies Cumulative............................ 37
SECTION 5.11. Delay or Omission Not Waiver.............................. 38
SECTION 5.12. Control by Holders........................................ 38
SECTION 5.13. Waiver of Past Defaults................................... 38
SECTION 5.14. Undertaking for Costs..................................... 39
SECTION 5.15. Waiver of Stay or Extension Laws.......................... 39
SECTION 5.16. Duty to Accelerate........................................ 39
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities....................... 40
SECTION 6.02. Notice of Defaults........................................ 41
SECTION 6.03. Certain Rights of Trustee................................. 42
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.... 43
SECTION 6.05. May Hold Securities....................................... 43
SECTION 6.06. Money Held in Trust....................................... 43
SECTION 6.07. Compensation and Reimbursement............................ 43
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 6.08. Disqualification; Conflicting Interests................... 44
SECTION 6.09. Corporate Trustee Required; Eligibility................... 51
SECTION 6.10. Resignation and Removal; Appointment of Successor......... 52
SECTION 6.11. Acceptance of Appointment by Successor.................... 53
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business................................................ 55
SECTION 6.13. Preferential Collection of Claims Against Company......... 55
SECTION 6.14. Appointment of Authenticating Agent....................... 60
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders. 61
SECTION 7.02. Preservation of Information; Communications to Holders.... 62
SECTION 7.03. Reports by Trustee........................................ 63
SECTION 7.04. Reports by Company........................................ 65
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms...... 66
SECTION 8.02. Successor Corporation Substituted......................... 67
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Holders........ 67
SECTION 9.02. Supplemental Indentures with Consent of Holders........... 68
SECTION 9.03. Execution of Supplemental Indentures...................... 70
SECTION 9.04. Effect of Supplemental Indentures......................... 70
SECTION 9.05. Conformity with Trust Indenture Act....................... 70
SECTION 9.06. Reference in Securities to Supplemental Indentures........ 70
ARTICLE X
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest................ 70
SECTION 10.02. Maintenance of Office or Agency........................... 71
SECTION 10.03. Money for Securities Payments To Be Held in Trust......... 71
</TABLE>
-v-
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INDENTURE, dated as of March 1, 1992, between Tribune Company, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 435 North Michigan
Avenue, Chicago, Illinois 60611, and Continental Bank, National Association, a
national banking association duly organized and existing under the laws of the
United States of America, 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 unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture and any indenture supplemental hereto,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein as of the date of this Indenture;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
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"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means, with respect to the Securities of any series,
any Person authorized by the Trustee to act on behalf of the Trustee to
authenticate the Securities of such series.
"Board of Directors" means either the board of directors of the Company or
a duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the City of Chicago, State
of Illinois, are authorized or obligated by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
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"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President
and Chief Executive Officer, or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Controller, an Assistant Controller, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Consolidated Subsidiary" means at any date any Subsidiary the accounts of
which are consolidated with those of the Company as of such date for public
financial reporting purposes.
"Consolidated Net Tangible Assets" has the meaning specified in Section
10.07.
"Corporate Trust Office" means the principal office of the Trustee in the
City of Chicago, Illinois, at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Indenture is located at 231 S. La Salle Street, Chicago, Illinois 60697.
"Corporation" includes corporations, associations, companies, business
trusts and limited partnerships.
"Currency" means Dollars or Foreign Currency.
"Depository" means unless otherwise specified by the Company pursuant to
either Sections 2.03 or 3.01, with respect to Securities of any series issuable
or issued as a Global Security, The Depository Trust Company, New York, New
York, or any successor thereto registered under the Securities and Exchange Act
of 1934, as amended, or other applicable statute or regulation.
"Discharged" has the meaning specified in Section 13.02.
"Dollar" or "$" means the currency of the United States that at the time of
payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
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"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 5.01.
"Fixed Rate Security" means a Security which provides for the payment of
interest at a fixed rate.
"Floating Rate Security" means a Security which provides for the payment of
interest at a variable rate determined periodically by reference to an interest
rate index specified pursuant to Section 3.01.
"Foreign Currency" means a currency issued by the government of any country
other than the United States or a composite currency the value of which is
determined by reference to the values of the currencies of any group of
countries.
"Global Security" means a Security issued to evidence all or a part of any
series of Securities which is executed by the Company and authenticated and
delivered by the Trustee to the Depository or pursuant to the Depository's
instruction, all in accordance with this Indenture and pursuant to a Company
Order, which shall be registered as to principal and interest in the name of the
Depository or its nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" has the meaning specified in Section 10.07.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 3.01.
"Mortgage" has the meaning specified in Section 10.07.
"Net Worth" has the meaning specified in Section 10.07.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President, or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
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"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon the
declaration of acceleration of the maturity thereof pursuant to Section 5.02.
"Outstanding", when used with respect to Securities or any series of
Securities, means, as of the date of determination, all Securities or all
Securities of such series, as the case may be, theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holder; of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Security which shall be deemed to be
Outstanding for such purposes shall be the 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 such time and (b) 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
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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 (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any manufacturing or printing plant, warehouse,
office building, power plant or transmission facility owned by the Company or
any Subsidiary or any property or right owned by or granted to the Company or
any Subsidiary and used or held for use in the newspaper, newsprint, radio or
television business conducted by the Company or any Subsidiary, except any
manufacturing or printing plant, warehouse, office building, power plant or
transmission facility or property or right which in the opinion of the Board of
Director the Company is not of material importance to the total business
conducted by the Company and its Subsidiaries considered as one enterprise.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman
of the trust
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committee, the president, any vice president, any assistant vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of this
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" has the meaning specified in Section 10.07.
"Sale and Lease-Back Transaction" has the meaning specified in Section
10.08.
"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" has the meaning specified in Section 3.05.
"Significant Subsidiary" has the meaning specified in Section 5.01.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such with respect to
one or more series of Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean and include each Person who is
then a Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" shall mean and include each such Person, and "Trustee," as used with
respect to the Securities of any series, shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
9.05.
"Value" has the meaning set forth in Section 10.08.
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"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".
"United States" means the United States of America (including the District
of Columbia), its territories, its possessions and other areas subject to its
jurisdiction.
"U.S. Government Obligations" has the meaning specified in Section 13.02.
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate (other than any Officers' Certificate delivered pursuant
to Section 10.09) or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
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SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Any certificate or opinion of an officer or opinion of counsel may be
based, insofar as it relates to any accounting matters, upon a certificate or
opinion of, or representations by, an accountant or firm of accountants in the
employ of the Company, unless such officer or counsel, as the case may be,
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such accounting matters are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by a specified
percentage of Holders of one or more series then Outstanding may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Holders in person or
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by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
is or are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems; sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) The Company may fix a record date for the purpose of determining the
identity of the Holders entitled to participate in any Act authorized or
permitted under this Indenture, which record date shall be the later of (i) 10
days prior to the first solicitation of the written instruments required for
such Act or (ii) the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation pursuant to Section 7.01. If such a record
date is fixed, the Persons who were the Holders of the Securities of the
affected series at the close of business on such record date (or their duly
authorized proxies) shall be the only Persons entitled to execute written
instruments with respect to such Act, or to revoke any written instrument
previously delivered, whether or not such Persons shall continue to be Holders
of the Securities of such series after such record date. No such written
instrument shall be valid or effective for more than 150 days after such record
date.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the
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Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 1.05. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to the attention of its Secretary at 435 North Michigan Avenue,
Chicago, Illinois 60611, or at any other address previously furnished in
writing to the Trustee by the Company.
Any such Act or other document shall be in the English language.
SECTION 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice provided, however, that, in any case, any notice to
Holders of Floating Rate Securities regarding the determination of a periodic
rate of interest, if such notice is required pursuant to Section 3.01, shall be
sufficiently given if given in the manner specified pursuant to Section 3.01. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
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In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by operation of Section 318(c) of the Trust Indenture Act, the imposed
duties shall control.
SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of Illinois except as may be otherwise
required by mandatory provisions of law.
SECTION 1.13. Legal Holidays.
Unless otherwise specified pursuant to Section 3.01, in any case where
the due date of interest on or principal of any Security or the date fixed for
redemption of any Security shall not be a Business Day then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
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principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
such due date or Redemption Date; provided that no interest shall accrue for the
period from and after such prior date.
SECTION 1.14. Incorporators, Stockholders, Officers and Directors Exempt from
Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such, or against
any past, present or future stockholder, officer or director, as such, of the
Company or of any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
ARTICLE II
SECURITY FORMS
SECTION 2.01. Forms Generally.
The Securities of each series shall be in substantially the form or
forms 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 any law or with any rules made pursuant thereto or with
any rules of any securities exchange or all as may, consistently herewith, be
determined by the officers executing such Securities to be necessary or
appropriate, as evidenced by their execution of the Securities. If the form of
Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action together with a true
and correct copy of the form of the Securities of such series approved by or
pursuant to such Board Resolution shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be
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produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be
in substantially the following form:
This is one of the Securities of the series designated pursuant to the
within-mentioned Indenture.
___________________________________ _____________________________________
as Trustee as Trustee
OR
By: _______________________________ By: _________________________________
Authorized Officer As Authenticating Agent
By: _________________________________
Authorized Officer
SECTION 2.03. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Section 3.01 that the
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with Section 3.03 and the Company Order delivered
to the Trustee thereunder, authenticate and deliver, such Global Security or
Securities, which (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, the Outstanding Securities of such
series to be represented by such Global Security or Securities, (ii) shall be
registered in the name of the Depository for such Global Security or Securities
or its nominee, (iii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's instruction and (iv) shall bear a legend
substantially to the following effect: "THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITORY."
(b) Notwithstanding any other provision of this Section 2.03 or of
Section 3.05, unless otherwise provided in the Global Security, a Global
Security may be transferred, in whole but not in part and in the manner provided
in Section 3.05, only to the Depository or another nominee of the Depository for
such
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Global Security, or to a successor Depository for such Global Security selected
or approved by the Company or to a nominee of such successor Depository. Except
as provided below, owners solely of beneficial interests in a Global Security
shall not be entitled to receive physical delivery of the Securities represented
by such Global Security and will not be considered the Holders thereof for any
purpose under the Indenture.
(c) (i) If at any time the Depository for a Global Security notifies
the Company that it is unwilling or unable to continue as Depository for such
Global Security or if at any time the Depository for the Securities for such
series shall no longer be eligible or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depository with respect to such Global
Security. If a successor Depository for such Global Security is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election pursuant to Section
3.01(16) shall no longer be effective with respect to such Global Security and
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of individual Securities of such series in
exchange for such Global Security, will authenticate and deliver individual
Securities of such series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
in exchange for such Global Security.
(ii) The Company may at any time and in its sole discretion determine
that the Securities of any series issued or issuable in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual
Securities of such series in exchange in whole or in part for such Global
Security, will authenticate and deliver individual Securities of such series of
like tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of such Global Security or Securities representing such
series in exchange for such Global Securities or Securities.
(iii) A Global Security will also be exchangeable if there shall have
occurred and is continuing an Event of Default or an event which, with the
giving of notice or lapse of time or both, would constitute an Event of Default
with respect to the Securities of such series represented by such Global
Security. In such event the Company will execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of individual Securities
of such series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Securities of such series of like tenor and
terms in definitive form in an aggregate principal amount equal to the
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principal amount of such Global Security or Securities representing such series
in exchange for such Global Securities or Securities.
(iv) If specified by the Company pursuant to Section 3.01 with respect
to Securities issued or issuable in the form of a Global Security, the
Depository for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of such series of like
tenor and terms in definitive form on such terms as are acceptable to the
Company and such Depository. Thereupon the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge, (1) to each
Person specified by such Depository a new Security or Securities of the same
series of like tenor and terms and of any authorized denominations as requested
by such Person or the Depository in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Security; and (2)
to such Depository a new Global Security of like tenor and terms and in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of Securities
delivered to Holders thereof.
(v) Upon issuance, all Securities with identical terms and held by the
Depository on behalf of its participants will be represented by one Global
Security and be deposited with the Depository and registered in the name of a
nominee of the Depository. The Company may request the Trustee at any time to
consolidate two or more outstanding Global Securities having identical terms and
for which interest has been paid to the same date.
(vi) In any exchange provided for in any of the preceding five
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual fully registered Securities in authorized denominations,
provided that the definitive Securities so issued in exchange for a Global
Security shall be in denominations of $100,000 and any aggregate principal
amount and tenor as the portion of such Global Security to be exchanged, and
provided further that, unless the Company agrees otherwise, Securities in
certificated registered form will be issued in exchange for a Global Security,
or any portion thereof, only if such Securities in certificated registered form
were requested by written notice to the Trustee or the Securities Registrar by
or on behalf of a person who is beneficial owner of an interest thereof given
through the Holder hereof. Except as provided above, owners of beneficial
interest in a Global Security will not be entitled to receive physical delivery
of Securities in certificated registered form and will not be considered the
Holders thereof for any purpose under the Indenture. No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other govern-
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mental charge payable in connection therewith. Upon the exchange of a Global
Security for individual Securities, such Global Security shall be cancelled by
the Trustee. Securities issued in exchange for a Global Security pursuant to
this Section 2.03 shall be registered in such names and in such authorized
denominations as the Depository for such Global Security, pursuant to the
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the persons
in whose names such Securities are so registered.
(vii) Members in and participants of the Depository shall have no
rights under the Indenture with respect to any Global Security held on their
behalf by a Depository, and such Depository may be treated by the Company, the
trustee and any agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever.
(d) Any Company Order delivered pursuant to Section 3.03 by the
Company with respect to the authentication, exchange, endorsement or delivery or
redelivery of a Global security shall be in writing, signed by any one of the
officers enumerated under the definition of "Company Order" contained in Section
1.01 or by any officer authorized by a previously delivered Company Order, but
need not comply with Section 1.02 and need not be accompanied by an Opinion of
Counsel.
ARTICLE III
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the initial issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in
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lieu of, other Securities of the series pursuant to Sections 2.03, 3.04,
3.05, 3.06, 9.06 or 11.07);
(3) the date or dates on which or periods during which the Securities
of the series may be issued and the date or dates on which or the range of
dates within which the principal of (and premium, if any, on) the
Securities of the series are or may be payable;
(4) the rate or rates or the methods of determination thereof at which
the Securities of the series shall bear interest, if any, the date or dates
from which such interest shall accrue and the dates on which such interest
shall be payable and the record date for the interest payable on any such
interest date;
(5) the place or places, if any, in addition to the City of Chicago,
where the principal of (and premium, if any) and interest on Securities of
the series shall be payable;
(6) the period or periods within which or the dates on which, the
price or prices at which and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the
Company and/or the method by which such period or periods, dates, price or
prices and terms and conditions shall be determined;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased or
repaid, in whole or in part, pursuant to such obligation and/or the method
by which such period or periods, price or prices or terms and conditions
shall be determined;
(8) provisions, if any, for the defeasance of Securities of the
Series;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to
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Section 5.02 or the method by which such portion shall be determined; and
(11) if other than Dollars, the Foreign Currency in which Securities
of the series shall be denominated, or in which payment of the principal of
(and premium, if any) and interest on the Securities of the series may be
made or the method by which such Foreign Currency shall be determined;
(12) if the principal of (and premium, if any) or interest on
Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which the Securities
are denominated or stated to be payable without such election, the periods
within which and the terms and conditions upon which, such election may be
made and the time and the manner of determining the exchange rate between
the Currency in which the Securities are denominated or payable without
such election and the Currency in which the Securities are to be paid if
such election is made;
(13) if the amount of payments of principal of (and premium, if any)
or interest on the Securities of the series may be determined with
reference to an index including, but not limited to, an index based on a
Currency or Currencies other than that in which the Securities are payable,
or any other type of index, the manner in which such amounts shall be
determined;
(14) if the Securities of the series are denominated or payable in a
Foreign Currency, any other terms concerning the payment of principal of
(premium, if any) or any interest on such Securities (including the
Currency or Currencies of payment thereof);
(15) any additional Events of Default or covenants provided for with
respect to Securities of the series or any Events of Default or covenants
herein specified which shall not be applicable to the Securities of the
series;
(16) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities or for other
Global Securities; and the Depository for such Global Security or
Securities;
(17) whether the Securities of the series are to be issuable in
definitive form (whether upon original
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issuance or upon exchange of a temporary Security of the series) only upon
receipt of certain certificates or other documents or satisfaction of other
conditions, and, if so, the form and terms of such certificates, documents
or conditions; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto. All Securities of any series need not be
issued at the same time and may be issued from time to time, consistent with the
terms of this Indenture, if so provided by or pursuant to such Board Resolution
and set forth in such Officer's Certificate or in any such indenture
supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.02. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.01. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof and shall be payable
only in Dollars.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the
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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 and subject to the provisions hereof shall authenticate
and deliver such Securities. If the form or terms of the Securities of the
series have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 2.01 and 3.01, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel
stating that:
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Securities conform
to the requirements of this Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such Securities;
(2) the form of such Securities has been established in conformity
with the provisions of this Indenture;
(3) the terms of such Securities have been established in conformity
with the provisions of this Indenture;
(4) in the event that the form or terms of such Securities have been
established in a supplemental indenture, the execution and delivery of such
supplemental indenture have been duly authorized by all necessary
corporate action of the Company, such supplemental indenture has been duly
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, is a valid and binding obligation
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles
of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law);
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(5) the execution and delivery of such Securities have been duly
authorized by all necessary corporate action of the Company and such
Securities have been duly executed by the Company and, assuming due
authentication by the Trustee and delivery by the Company, are the valid
and binding obligations of the Company enforceable against the Company in
accordance with their terms, entitled to the benefit of the Indenture,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law); and
(6) the amount of Outstanding Securities of such series, together with
the amount of such Securities, does not exceed any limit established under
the terms of this Indenture on the amount of Securities of such series that
may be authenticated and delivered.
In the event that all Securities of a series are not issued at the
same time, the Trustee shall authenticate and deliver the Securities of such
series executed and delivered by the Company for original issuance upon receipt
of an order of the Company (which need not comply with Section 1.02 hereof),
signed by an officer or employee of the Company identified to the Trustee in an
Officers' Certificate, if the Trustee has previously received the Company Order
and Opinion of Counsel referred to in the third paragraph of this Section 3.03
with respect to the issuance of any Securities of such series.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
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SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company for that series, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
The Company or the Trustee shall keep a register (the "Security
Register") in which, subject to such reasonable regulations as the Company or
the Trustee may prescribe, the Company or the Trustee shall provide for the
registration of Securities and of transfers of Securities.
Upon surrender for registration of transfer of any Security of any
series at the office or agency designated by the Company for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, subject to Section 2.03, Securities of
any series may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
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the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company or any registrar with respect to such series of
Securities, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.03 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
None of the Company, the Trustee, any Paying Agent or the Securities
Registrar will have any responsibility or liability for any aspect of the
Depository's records relating to or payment made on account of beneficial
ownership interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Company or to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity
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as may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon the Company's request the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any interest payment date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the record date (as hereinafter defined) for such
interest notwithstanding the cancellation of such Security upon the registration
of transfer or exchange subsequent to the record date and prior to such interest
payment date; provided, however, that if and to the extent that the Company
shall default in the payment of the interest due on such interest payment date,
such defaulted interest shall be paid to the Persons in whose names outstanding
Securities are registered at the close of business on a subsequent record date
established by notice given by mail by and on behalf of the Company to the
Holders of Securities not less than fifteen days preceding such subsequent
record date, such record date to be not less than ten days preceding the date of
payment of such defaulted interest. The term "record date" as
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used in this Section 3.07 with respect to any regular interest payment date
shall mean such day preceding such interest payment date as may have been
established as the record date with respect to an interest payment date for
Securities of such series in a Board Resolution in accordance with Section 3.01
hereof. The Company may also make payment of any defaulted interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange in which the Securities may be listed, and upon such notice as may be
required by such exchange if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this sentence, such manner of payment shall
be deemed practicable by the Trustee.
SECTION 3.08. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 3.07) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.09. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it; provided, however, that if surrendered to
any Authenticating Agent, such Securities shall be promptly cancelled by such
Authenticating Agent and forwarded to the Trustee. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of as directed by a Company Order; provided that the Trustee shall not
be required to dispose of securities in a manner deemed impracticable by the
Trustee.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 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.
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SECTION 3.11. Currency of Payments in Respect of Securiies.
(a) Except as otherwise specified pursuant to Section 3.01, payment of
the principal of (and premium, if any) and interest on Securities of any series
will be made in Dollars.
(b) For purposes of any provision of the indenture where the Holders
of Outstanding Securities may perform an Act which requires that a specified
percentage of the Outstanding Securities of all series perform such Act and for
purposes of any decision or determination by the Trustee of amounts due and
unpaid for the principal (and premium, if any) and interest on the Securities of
all series in respect of which moneys are to be disbursed ratably, the principal
of (and premium, if any) and interest on the Outstanding Securities denominated
in a Foreign Currency will be the amount in Dollars based upon exchange rates
determined as specified pursuant to Section 3.01 for Securities of such series,
as of the date for determining whether the Holders entitled to perform such Act
have performed it, or as of the date of such decision or determination by the
Trustee, as the case may be.
(c) Any decision or determination to be made by the Trustee regarding
exchange rates may be made instead by an agent appointed by the Trustee and
acceptable to the Company; provided that such agent shall accept such
appointment in writing and the terms of such appointment shall be acceptable to
the Company and shall, in the opinion of the Company and the Trustee at the time
of such appointment, require such agent to make such determination by a method
consistent with the method provided pursuant to Section 3.01 for the making of
such decision or determination. All decisions and determinations of the Trustee
or the agent regarding exchange rates shall be in its sole discretion and shall,
in the absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company and all Holders of the Securities.
SECTION 3.12. Judgments.
The Company may provide pursuant to Section 3.01 for Securities of any
series that the obligation, if any, of the Company to pay the principal of (and
premium, if any) and interest on the Securities of any series in a Foreign
Currency or Dollars (the "Designated Currency") as may be specified pursuant to
Section 3.01 is of the essence and thereby agree that, to the fullest extent
possible under applicable law, judgments in respect of such Securities shall be
given in the Designated Currency. In such event, the obligation of the Company
to make payments in the Designated Currency of the principal of (and premium, if
any) and interest on such Securities shall, notwithstanding any payment in any
other Currency (whether pursuant to a judgment or otherwise), be discharged only
to the extent of the amount of the Designated Currency that the Holder receiving
such
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payment may, in accordance with normal banking procedures, purchase with the sum
paid in such other Currency (after any premiums and cost of exchange) on the
Business Day in the country of issue of the Designated Currency immediately
following the day on which such Holder receives such payment. If the amount in
the Designated Currency that may be so purchased for any reason falls short of
the amount originally due, the Company shall pay such additional amounts as may
be necessary to compensate for such shortfall, and any obligation of the Company
not discharged by such payment shall be due as a separate and independent
obligation and, until discharged as provided herein, shall continue in full
force and effect.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.
This Indenture, with respect to the Securities of any series (if all
series issued under this Indenture are not to be affected), shall upon Company
Request cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.06 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.03) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their stated maturity
within one year, or
(iii) if the Securities of such series are denominated and
payable only in Dollars (except as provided pursuant to Section
3.01)
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and such Securities are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount in Dollars sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the stated
maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
In the event there are Securities of two or more series hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and
discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive.
SECTION 4.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of
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the principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee.
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series when due and payable as therein or herein
provided whether at its maturity or upon acceleration, redemption or
otherwise; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
5.01 specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Significant
Subsidiary in
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an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect or (B) a decree or order adjudging the Company or any
Significant Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Significant Subsidiary
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or a Significant Subsidiary or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company or any Significant Subsidiary of a
voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company or any Significant
Subsidiary to the entry of a decree or order for relief in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law now or hereafter in effect
or to the commencement of any bankruptcy or insolvency case or proceeding
against the Company or any Significant Subsidiary, or the filing by the
Company or any Significant Subsidiary of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law
now or hereafter in effect, or the consent by the Company or any
Significant Subsidiary to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or any Significant
Subsidiary or of any substantial part of the property of the Company or any
Significant Subsidiary, or the making by the Company or any Significant
Subsidiary of an assignment for the benefit of creditors, or the Company or
any Significant Subsidiary shall fail generally to pay its debts as they
become due, or the taking of corporate action by the Company or any
Significant Subsidiary in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of
that series.
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For purposes of this Section 5.01 the term "Significant Subsidiary"
shall mean any Subsidiary (i) which, as of the close of the fiscal year of the
Company immediately preceding the date of any determination hereunder,
contributed more than 7% of the consolidated gross operating revenues of the
Company and its Subsidiaries, or (ii) the Net Worth of which (determined in a
manner consistent with the manner of determining consolidated Net Worth of the
Company and its Subsidiaries) as of the close of such immediately preceding
fiscal year exceeded 7% of the consolidated Net Worth of the Company and its
Subsidiaries.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding, occurs and is continuing, then in every such case, unless the
principal of all of the Securities of such series shall have already become due
and payable, the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series may declare the principal amount
(or, in the case of certain Securities which provide for less than the entire
principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to this Section 5.02, such portion
of the principal amount as may be specified in the terms of that series of
Securities) and the interest accrued thereon of all of the Securities of that
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) and interest accrued thereon shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum in the
Currency in which such Securities are denominated (except as otherwise
provided pursuant to Section 3.01) sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of
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acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration shall have been rescinded and
annulled, the principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such declaration; and payment
of the portion of the principal thereof as shall have become due and payable as
a result of such declaration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Securities.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days; or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security when due and payable whether at its maturity or upon
acceleration, redemption or otherwise;
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(3) default is made in the deposit of any sinking fund payment when
and as due by the terms of any Security,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue interest, at the
rate or rates prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Company, or any other obligor upon
the Securities or the property of the Company, or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(1) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and to
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file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
Subject to the provisions of Article Eight of this Indenture, nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
In any proceeding brought by the Trustee (and also in any proceeding
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities in respect to which action was taken, and it shall not
be necessary to make any Holders of such Securities parties to any such
proceedings.
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SECTION 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest respectively; and
THIRD: To the Company.
SECTION 5.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a custodian, liquidator, assignee, sequestrator,
receiver, trustee, or other similar official, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
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(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holder or Holders of any other series, or to obtain or to seek to obtain
priority or preference over any other such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.07) interest on such Security on the due dates expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
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SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or 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 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall have determined that the action so directed
would not be unjustly prejudicial to the Holders of any Securities of any
series with respect to which the Trustee is the Trustee not taking part in
such direction,
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(4) the Trustee shall be indemnified as hereinafter provided.
SECTION 5.13. Waiver of Past Defaults.
Subject to Section 5.02, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
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Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security on
or after the due dates expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the exercise of any power
herein granted to the Trustee, but will suffer and permit the exercise of every
such power as though no such law had been enacted.
SECTION 5.16. Duty to Accelerate.
The Trustee shall be under no duty to accelerate the debt hereunder or
to institute any proceedings unless it knows or in the exercise of reasonable
diligence should have known of the existence of an event of default hereunder.
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ARTICLE VI
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect
to Securities of any series,
(1) the Trustee undertakes to perform, with respect to Securities of
such series, such duties and only such duties as are specifically set forth
in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect to Securities of any
series has occurred and is continuing, the Trustee shall exercise, with respect
to Securities of such series, such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
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(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series pursuant to the provisions of Section 5.12
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities of
such series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.02. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and provided, further, that in the case of any default of the character
specified in Section 5.01(4) with respect to the Securities of such series, no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
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SECTION 6.03. Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such matters of fact as it may see fit, and, if the
Trustee shall determine to
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make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or
attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustee or any Authenticating Agent assumes no responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent or such agent.
SECTION 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law and except as otherwise
provided herein. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.07. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation in
Dollars for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee in Dollars upon its
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request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
SECTION 6.08. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it shall,
within 90 days after ascertaining that it has such conflicting interest, either
eliminate such conflicting interest or resign with respect to the Securities of
that series in the manner and with the effect hereinafter specified in this
Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such 90-
day period, transmit by mail to all Holders of Securities of, that series, as
their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to the Securities of any series if:
(1) the Trustee is trustee under this Indenture with respect to the
Outstanding Securities of any series other than that series or is trustee
under another indenture under which any other securities, or certificates
of interest or participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral trust indenture
under which the only collateral consists of Securities issued under this
Indenture, provided that there shall be excluded from the operation of this
paragraph this Indenture with respect to the Securities of any series other
than that series or other indenture or indentures under which other
securities, or certificates of
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interest or participation in other securities, of the Company are
outstanding, if
(i) this Indenture and such other indenture or indentures are
wholly unsecured and such other indenture or indentures are hereafter
qualified under the Trust Indenture Act, unless the Commission shall
have found and declared by order pursuant to Section 305(b) or Section
307(c) of this Trust Indenture Act that differences exist between the
provisions of this Indenture with respect to Securities of that series
and one or more other series or the provisions of such other indenture
or indentures (or any series of securities issuable thereunder) which
are so likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture with
respect to the Securities of that series and such other series or
under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to the
Securities of that series and such other series or such other
indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the Securities of that
series and such other series or under such other indenture or
indentures;
(2) the Trustee or any of its directors or executive officers is an
obligor upon the Securities or an underwriter for the Company;
(3) the Trustee directly or indirectly controls, is directly or
indirectly controlled by, or is under direct or indirect common control
with the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the busi ness of underwriting, except
that (i) one individual may be a director or an executive officer, or both,
of
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the Trustee and a director or an executive officer, or both, of the Company
but may not be at the same time an executive officer of both the Trustee
and the Company; (ii) if and so long as the number of directors of the
Trustee in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a director of
the Company; and (iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary, or in any other similar capacity, or, subject to the provisions
of paragraph (1) of this Subsection, to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or holds a collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company not including the
Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (ii) 10% or
more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined) 5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company; or
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(9) the Trustee owns, on the date of default upon the Securities of
such series or any anniversary of such default while such default shall be
continuing, in the capacity of executor, administrator, testamentary or
inter vivos trustee, guardian, committee or conservator, or in any other
similar capacity, an aggregate of 25% or more of the voting securities, or
of any class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting interest
under paragraph (6), (7) or (8) of this Subsection. As to any such
securities of which the Trustee acquired ownership through becoming
executor, administrator or testamentary trustee of an estate which
included them, the provisions of the preceding sentence shall not apply,
for a period of two years from the date of such acquisition, to the extent
that such securities included in such estate do not exceed 25% of such
voting securities or 25% of any such class of security. Promptly after the
date of such default upon the Securities of such series and annually in
each succeeding year that the Securities of such series remain in default,
the Trustee shall make a check of its holdings of such securities in any of
the above-mentioned capacities as of such May 15. If the Company fails to
make payment in full of the principal of (or premium, if any) or interest
on any of the Securities when as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a prompt
check of its holdings of such securities in any of the above mentioned
capacities as of the date of the expiration of such 30-day period, and
after such date, notwithstanding the foregoing provisions of this
paragraph, all such securities so held by the Trustee, with sole or joint
control over such securities vested in it, shall, but only so long as such
failure shall continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of this Subsection.
(10) except under the circumstances described in paragraphs (1), (3),
(4), (5) and (6) of Section 6.13(b), the Trustee shall be or shall become a
creditor of the Company.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this Subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this Subsection.
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For the purposes of paragraph (1) of this Subsection, Sections 5.12
and 5.13 and the definition of the term "Outstanding," the term "series of
securities" or "series" means a series, class or group of securities issuable
under an indenture pursuant to whose terms holders of one such series may vote
to direct the indenture trustee, or otherwise take action pursuant to a vote of
such holders, separately from holders of another such series, provided that
"series of securities" or "series" shall not include any series of securities
issuable under an indenture if all such series rank equally and are wholly
unsecured.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (iii) the Trustee shall not
be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in Clause (ii) above, or (B) any security which it holds as
collateral security under this Indenture, irrespective of any default hereunder,
or (C) any security which it holds as agent for collection, or as custodian,
escrow agent or depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter," when used with reference to the Company,
means every person who, within three years prior to the time as of which
the determination is made, has purchased from the Company with a view to,
or has offered or sold for the Company in connection with, the distribution
of any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a corporation or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
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(3) The term "Person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled to vote in
the direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the Securities.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(7) The term "default" shall mean, with respect to the Securities of
any series, an Event of Default in respect thereof (exclusive of any period
of grace or requirement of notice).
(e) Except in the case of a default in the payment of the principal of
(and premium, if any) or interest on the Securities of any series, or in the
payment of any sinking fund or analogous payment, the Trustee shall not be
required to resign as provided by this Section if the Trustee shall have
sustained the burden of proving, on application to the Commission and after
opportunity for hearing thereon, that:
(1) the default under this Indenture may be cured or waived during a
reasonable period and under the procedures described in such application,
and
(2) a stay of the Trustee's duty to resign will not be inconsistent
with the interests of the Holders of the Securities of the applicable
series.
The filing of such an application shall automatically stay the
performance of the duty to resign until the Commission orders otherwise.
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(f) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of voting securities of the Trustee, the
Company or any other person referred to in this Section (each of whom is
referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount," when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares and the number of units if relating to
any other kind of security.
(4) The term "outstanding" means those securities issued and not held
by or for the account of the issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
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(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same right and privileges; provided, however, that, in
the case of secured evidences of Indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series' different classes and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with respect to each
series of Securities which shall be either (i) a corporation, bank or trust
company 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 exercise corporate trust powers and subject to supervision or
examination by United States or Federal or State authority or (ii) a corporation
or other Person organized and doing business under the laws of any other
government which is permitted to act as Trustee pursuant to any rule, regulation
or order of the Commission, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by an authority of such
government, or a political subdivision thereof, substantially equivalent to the
supervision or examination applicable to the institution described in clause (i)
above, in each case having a combined capital and surplus of at least
$50,000,000 and its Corporate Trust Office in Chicago, Illinois or New York, New
York, if there shall be such a corporation or Person in such location willing to
act upon or customary and reasonable terms. If such corporation or other Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation or other
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. Neither the Company nor any
Person directly or indirectly controlling, controlled by or under common control
with the Company shall serve as Trustee. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section 6.09, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
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SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08(a) after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security of the series as to which the Trustee has a
conflicting interest for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities of such series and
accepted appointment in the manner required by Section 6.11, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall,
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upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such Successor Trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
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(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion, or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within four months prior to a default, as defined in Subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in special account
for the benefit of the Trustee individually, the Holders of the Securities and
the holders of other indenture securities, as defined in Subsection (c) of this
Section:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal, premium, if
any, or interest, effected after the beginning of such four months' period
and valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this Subsection, or from the exercise of any
right of set-off which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company upon the date of such
default; and
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(2) all property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such four months'
period, or an amount equal to the proceeds from the disposition of any such
property, if disposed of, subject, however, to the rights, if any, of the
Company and its creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (iii) distributions made in cash, securities
or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such four months' period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such four
months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
Subsection (c) of this Section, would occur within four months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such four months' period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the
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purpose of repaying or refunding any pre-existing claim of the Trustee as such
creditor, such claim shall have the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have jurisdiction
(i) to apportion among the Trustee, the Holders and the holders of other
indenture securities, in accordance with the provisions of this paragraph, the
funds and property held in such special account and proceeds thereof, or (ii) in
lieu of such apportionment, in whole or in part, to give to the provisions of
this paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Holders and the holders of other
indenture securities with respect to their respective claims, in which event it
shall not be necessary to liquidate or to appraise the value of any securities
or other property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such four months' period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been
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removed prior to the beginning of such four months' period, it shall be subject
to the provisions of this Subsection if and only if the following conditions
exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such four months' period; and
(ii) such receipt of property or reduction of claim occurred within
four months after such resignation or removal.
In any case commenced under the Bankruptcy Act of July 1, 1898, or any
amendment thereto enacted prior to November 6, 1978, all references above to
periods of three months shall be deemed to be references to periods of four
months.
(b) There shall be excluded from the operation of Subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended,
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which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the classification of self-liquidating paper, as defined in Subsection (c)
in this Section.
(c) For the purposes of this Section 6.13 only:
(1) the term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due
and payable;
(2) the term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under
which indenture and as to which securities the Trustee is also trustee,
(ii) which contains provisions substantially similar to the provisions of
this Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities; and
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(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
SECTION 6.14. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.06 and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Whenever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery by an Authenticating Agent and a certificate of
authentication executed by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 6.14, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section 6.14, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section 6.14.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 6.14, without the execution or filing of any paper or any
further act on the part of the Trustee or Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice
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of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.14.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 6.14, and the
Trustee shall be entitled to be reimbursed for such payments.
The provisions of Sections 3.08, 6.04 and 6.05 shall be applicable to
each Authenticating Agent.
Pursuant to each appointment made under this Section 6.14, the
Securities of each series covered by such appointment may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
_____________________________________
As Authenticating Agent
By: _________________________________
Authorized Signature
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
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(1) semi-annually, not more than 15 days after each record date with
respect to a regular interest payment date for each series of Securities, a
list, in such form as the Trustee may reasonably require, containing all
the information in the possession and control of the Company or of its
paying agents regarding the names and addresses of the Holders of such
series as of such record date; provided, however, that if Securities of any
series shall have more than two regular interest payment dates in each
calendar year or shall not bear interest, then such list with respect to
such series of Securities will be furnished to the Trustee semi-annually on
such dates as may be agreeable to the Trustee; and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
except that if the Trustee is the sole registrar with respect to any series of
Securities, no such list need be furnished with respect to such series.
SECTION 7.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as sole Security
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the receipt of
such application, at its election, either
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.02(a), or
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(2) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 7.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appears in the
information preserved at the time by the Trustee in accordance with Section
7.02(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 7.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 7.02(b).
SECTION 7.03. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the year
1994, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report dated as of such May
15 with respect to any of the following events which may have occurred within
the
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previous 12 months (but if no such event has occurred within such period, no
report need be transmitted):
(1) its eligibility under Section 6.09 and its qualifications under
Section 6.08, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under said Sections, a written
statement to such effect;
(2) the creation of or any material change to a relationship specified
in paragraphs (1) through (10) of Section 6.08(c);
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities, on the trust estate or on any property or
funds held or collected by it as Trustee, except that the Trustee shall not
be required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the principal amount
of the Securities Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 6.13(b)(2), (3),
(4) or (6);
(5) the property and funds, if any, physically in the possession of
the Trustee (as such) on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, or the Securities of any series, except
action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 6.02.
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(b) The Trustee shall transmit by mail to all Holders, as their names
and addresses appear in the Security Register, a brief report with respect to
the character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Subsection (a) of this
Section (or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on the trust estate or
on property or funds held or collected by it as Trustee and which it has not
previously reported pursuant to this Subsection, except that the Trustee shall
not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
the Securities Outstanding at such time, such report to be transmitted within 90
days after such time.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 7.04. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); or, if
the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the Trustee
and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
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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; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and interest
on all the Securities and the due and punctual performance and observance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and supplemental indenture comply with this
Article and that all conditions precedent
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herein provided for relating to such transaction have been complied with.
SECTION 8.02. Successor Corporation Substituted.
Upon any consolidation of the Company with or merger of the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.01, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relived of
all obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series, stating such Events
of Default are expressly being included solely to be applicable to such
series); or
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(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable as to principal, and with or without
interest coupons; or
(5) to add to, change or eliminate any of the provisions of this
Indenture, in respect of one or more series of Securities, provided that
any such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11(b); or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture, provided such action shall not adversely affect the
interest of the Holders of Securities of any series in any material
respect.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supple-
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mental indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(1) change the due date of the principal of, or any installment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of any Security
that would be due and payable upon a declaration of the maturity thereof
pursuant to Section 5.02, or change the place of payment where, or the coin
or Currency in which, any Security or any premium or the interest thereon
is denominated or payable (or, in the case of certain Securities which
provide for less than the entire principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 5.02, reduce the amount of principal payable upon such a
declaration of acceleration of the maturity thereof), or impair the right
to institute suit for the enforcement of any such payment on or after the
due date thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage of the principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.10, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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SECTION 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the
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Securities of that series in accordance with the terms of the Securities and
this Indenture.
SECTION 10.02. Maintenance of Office or Agency.
The Company will maintain in the City of Chicago, Illinois, for any
series of Securities, an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices to and
demands upon the Company in respect of the Securities of that series and this
Indenture may be served. Unless otherwise designated by the Company in a written
notice to the Trustee, such office or agency for all purposes shall be the
Corporate Trust Office of the Trustee. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee in the City of Chicago,
Illinois, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
SECTION 10.03. 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 Paying Agent will promptly notify the Trustee of the
Company's action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
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(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any) or interest on any Security of any series and remaining unclaimed for
three years after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
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SECTION 10.04. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and the rights (charter and statutory) and
franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries considered as a
whole.
SECTION 10.05. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation and maintenance of any of such properties, or disposing of any of
them, if such discontinuance or disposal is, in the judgment of the Company or
of the Subsidiary concerned, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 10.06. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and the Company shall have set aside on its books adequate reserves
with respect thereto (segregated to the extent required by generally accepted
accounting principles).
SECTION 10.07. Limitation on Indebtedness Secured by a Mortgage.
So long as the Securities of any series shall remain Outstanding, the
Company covenants and agrees that neither it nor any Restricted Subsidiary will
create, assume, guarantee or
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suffer to exist any Indebtedness secured by a Mortgage on any assets of the
Company or any Restricted Subsidiary unless the Company secures or causes such
Restricted Subsidiary to secure the Securities of that series equally and
ratably with, or prior to, such secured Indebtedness; provided, however, that
this restriction shall not apply to Indebtedness secured by
(a) Mortgages on the property of any corporation which Mortgages
existed at the time such corporation became a Restricted Subsidiary,
(b) Mortgages in favor of the Company or a Restricted Subsidiary,
(c) Mortgages on property of the Company or a Restricted Subsidiary in
favor of the United States of America or any State or political subdivision
thereof, or in favor of any other country or any political subdivision
thereof, to secure payment pursuant to any contract or statute or to secure
any indebtedness incurred for the purpose of financing all or any part of
the purchase price or the cost of the construction or improvement of the
property subject to such Mortgages,
(d) Mortgages on any property hereafter acquired by the Company or any
Restricted Subsidiary, contemporaneously with such acquisition or within
120 days thereafter, to secure or provide for the payment of any part of
the purchase price of such property, or Mortgages assumed by the Company or
any Restricted Subsidiary upon any property hereafter acquired by the
Company or any such Restricted Subsidiary which were existing at the time
of such acquisition, provided that the amount of any Indebtedness secured
by any such Mortgage created or assumed shall not exceed the cost to the
Company or such Restricted Subsidiary, as the case may be, of the property
covered by such Mortgage,
(e) any extension, renewal or refunding (or successive extension,
renewal or refunding), in whole or in part, of any Mortgage referred to in
the foregoing clauses (a) through (d), inclusive, or of any indebtedness
secured thereby, and
(f) any other Mortgage, other than Mortgages referred to in the
foregoing clauses (a) through (e), inclusive, so long as the aggregate of
all Indebtedness secured by Mortgages pursuant to this clause (f) and the
aggregate Value of the Sale and Lease-Back Transactions in existence at
such time (not including Sale and Lease-Back Transactions as to which the
Company has complied with Section 10.08(b)) does not
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exceed 10% of the Consolidated Net Tangible Assets of the Company and its
consolidated Subsidiaries.
For purposes of this Section 10.07 the following terms shall have the
following meanings:
(1) "Indebtedness" means (i) all items which in accordance with
generally accepted accounting principles would be included in determining
long-term liabilities representing borrowed money and purchase money
obligations as shown on the liability side of a balance sheet (other than
liabilities evidenced by obligations under leases and contracts payable for
broadcast rights), (ii) to the extent not included in clause (i) above,
indebtedness secured by any mortgage, pledge or lien existing on property
owned subject to such mortgage, pledge or lien, whether or not the
indebtedness secured thereby shall have been assumed, and (iii) to the
extent not included in clauses (i) and (ii) above, contingent obligations
in respect of, or to purchase or otherwise acquire, any indebtedness of
others of the character described in clauses (i) and (ii) above including,
but not limited to, guarantees and endorsements (other than for purposes of
collection in the ordinary course of business of a such indebtedness);
(2) "Mortgage" means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other
similar encumbrance;
(3) "Consolidated Net Tangible Assets" means total consolidated assets
of the Company and its Consolidated Subsidiaries, less (i) current
liabilities of the Company and its Consolidated Subsidiaries, (ii)
contracts payable for broadcast rights, (iii) the net book amount of all
intangible assets of the Company and its Consolidated Subsidiaries, (iv)
appropriate amounts to account for minority interests of other persons
holding stock in Subsidiaries and (v) investments in Subsidiaries (other
than Restricted Subsidiaries) aggregating in excess of 10% of the Net Worth
of the Company and its Consolidated Subsidiaries;
(4) "Net Worth" means the aggregate amount of stockholders' investment
as determined in accordance with generally accepted accounting principles;
and
(5) "Restricted Subsidiary" means each Subsidiary of the Company as of
the date hereof and each Subsidiary thereafter created or acquired (unless
expressly excluded by resolution of the board of
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directors of the Company adopted before, or within 120 days following, such
creation or acquisition).
SECTION 10.08. Limitation on Sale and Lease-Back.
The Company covenants and agrees that neither it nor any Subsidiary
will enter into any arrangement with any Person (other than the Company or a
Subsidiary), or to which any Person is a party, providing for the leasing to the
Company, or a Subsidiary, for a period, including renewals, of more than three
years of any Principal Property which has been or is to be sold or transferred
by the Company or such Subsidiary to such Person or to any other Person (other
than the Company or a Subsidiary) to which funds have been or are to be advanced
by such Person on the security of such leased property (in this Article Ten
called a "Sale and Lease-Back Transaction") unless either:
(a) The Company or such Subsidiary would be entitled to create,
assume, guarantee or suffer Indebtedness secured by a Mortgage under any
provision of clauses (a) through (e) of Section 10.07 or, pursuant to the
provisions of Section 10.07, to incur Indebtedness in a principal amount
equal to or exceeding the Value of such Sale and Lease-Back Transaction,
secured by a Mortgage on the property to be leased, without equally and
ratably securing the Securities; or
(b) The Company within four months after the effective date of such
Sale and Lease-Back Transaction (whether made by the Company or a
Subsidiary) applies to the voluntary retirement of Indebtedness of the
Company (which may include Securities, provided that any series of
Securities may only be redeemed in accordance with the terms of such
series) maturing by the terms thereof more than one year after the original
creation thereof and ranking at least pari passu with the Securities
(hereinafter in this Section called "Funded Debt") an amount equal to the
greater of (i) the net proceeds of the sale of the property subject to the
Sale and Lease-Back Transaction and (ii) the Value of such Sale and Lease-
Back Transaction, less the principal amount of Securities delivered within
four months after the effective date of such arrangement, to the Trustee
for retirement and cancellation and the principal amount of other Funded
Debt voluntarily retired by the Company within such four-month period,
excluding retirements of Securities and other Funded Debt as a result of
conversions or pursuant to mandatory sinking fund or prepayment provisions
or by payment at maturity.
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For purposes of Section 10.07 and this Section 10.08, the term "Value"
shall mean, with respect to a Sale and Lease-Back Transaction, as of any
particular time, the amount equal to the greater of (1) the net proceeds of the
sale or transfer of the property leased pursuant to such Sale and Lease-Back
Transaction or (2) the fair value in the opinion of the Board of Directors of
such property at the time of entering into such Sale and Lease-Back Transaction,
in either case divided first by the number of full years of the terms of the
lease and then multiplied by the number of the full years of such term remaining
at the time of determination, without regard to any renewal or extension options
contained in the lease.
SECTION 10.09. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, an Officers' Certificate (executed by at least the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company) stating whether or not to the best knowledge
of the signers thereof the Company is in default in the performance and
observance of any of the Company's covenants and agreements contained in this
Indenture and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
SECTION 10.10. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 10.04 to 10.08, inclusive,
with respect to the Securities of any series if before or after the time for
such compliance the Holders of a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instances or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. 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
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Section 3.01 for Securities of any series) in accordance with this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee.
In case of any redemption at the election of the Company of less than
all the Securities of any series, the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denominations for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.04. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
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(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price; and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.05. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be the date for an installment of interest) accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 11.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
due date is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant record date with respect to such
installments of interest according to their terms and the provisions of Section
3.07.
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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 11.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a specified place of payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 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 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted
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optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, which is to be
satisfied by payment of cash in the Currency in which the Securities of such
series are denominated (except as provided pursuant to Section 3.01) and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.02 and, prior to or
concurrently with the delivery of such Officers' Certificate, will also deliver
to the Trustee any Securities to be so delivered. Not less than 45 days before
each sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
11.03 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 11.04. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE XIII
DEFEASANCE
SECTION 13.01. Applicability of Article.
If pursuant to Section 3.01 provision is made for the defeasance of
Securities of a series, and if the Securities of such series are denominated and
payable only in Dollars (except as provided pursuant to Section 3.01) then the
provisions of this Article shall be applicable except as otherwise specified as
contemplated by Section 3.01 for Securities of such series. Defeasance
provisions, if any, for Securities denominated in a Foreign Currency may be
specified pursuant to Section 3.01.
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SECTION 13.02. Defeasance upon Deposit of Moneys or U.S. Government Obligations.
At the Company's option, either (a) the Company shall be deemed to
have been Discharged (as defined below) from its obligations with respect to
Securities of any series on the 91st day after the applicable conditions set
forth below have been satisfied or (b) the Company shall cease to be under any
obligation to comply with any term, provision or condition set forth in Section
8.01, Section 10.04, Section 10.05, Section 10.06, Section 10.07 and Section
10.08 with respect to Securities of any series (and, if so specified pursuant to
Section 3.01, any other restrictive covenant added for the benefit of such
series) at any time after the applicable conditions set forth below have been
satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities of such series (i) money in an amount, or (ii) U.S. Government
Obligations (as defined below) which through the payment of interest and
principal in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an
amount, or (iii) a combination of (i) and (ii), sufficient in the opinion
(with respect to (ii) and (iii)) of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of
principal (including any mandatory sinking fund payments) of, and interest
on, the Outstanding Securities of such series on the dates such
installments of interest or principal are due;
(2) if the Securities of such series are then listed the New York
Stock Exchange, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Company's exercise of its option under
this Section would not cause such Securities to be delisted;
(3) no Event of Default or event (including such deposit) which, with
notice or lapse of time, or both, would become an Event of Default with
respect to the Securities of such series shall have occurred and be
continuIng on the date of such deposit;
(4) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities of such series will
not
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recognize income, gain or loss for Federal income tax purposes as a result
of the Company's exercise of its option under this Section and will be
subject to Federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such option had not been
exercised, and, in the case of the Securities of such series being
Discharged, accompanied by a ruling to that effect received from or
published by the Internal Revenue Service.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities of such series to receive
payment of the principal of and the interest on such Securities when such
payments are due, (B) the Company's obligations with respect to the Securities
of such series under Sections 3.05, 3.06, 10.02 and 13.03 and (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America or the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which in either case under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
SECTION 13.03. Deposited Moneys and U.S. Government Obligations to Be Held in
Trust.
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 13.02 in respect of Securities of a series shall be held in
trust and applied by it, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as
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the Trustee may determine, to the Holders of such Securities, of all sums due
and to become due thereon for principal (premium, if any) and interest, if any,
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 13.04. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any money or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of
(premium, if any) and interest on the Securities of any series for which money
or U.S. Government Obligations have been deposited pursuant to Section 13.02.
The provisions of the last paragraph of Section 10.03 shall apply to
any money held by the Trustee or any Paying Agent under this Article that
remains unclaimed for two years after the Maturity of any series of Securities
for which money or U.S. Government obligations have been deposited pursuant to
Section 13.02.
_______________________
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.
TRIBUNE COMPANY
[Seal]
David J. Granat
By: _________________________________
Name: David J. Granat
Title: Vice President
Attest:
Stanley J. Gradowski, Jr.
___________________________________
Name: Stanley J. Gradowski, Jr.
Title: Secretary
CONTINENTAL BANK, NATIONAL
ASSOCIATION, Trustee
[Seal]
Greg Jordan
By: _________________________________
Name: Greg Jordan
Title: Vice President
Attest:
Melissa A. Rosal
___________________________________
Name:
Title: Trust Officer
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[FACE OF NOTE]
TRIBUNE COMPANY
MEDIUM-TERM NOTE
(Floating Rate)
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN./1/
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE 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./2/
REGISTERED CUSIP No.: PRINCIPAL
AMOUNT:
No. FLR-___ ______________ ________________
TRIBUNE COMPANY
MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
[ ] LIBOR Telerate Designated CMT Maturity Index:
INDEX CURRENCY:
- ------------------
/1/ This paragraph applies to global Notes only.
/2/ This paragraph applies to global Notes only.
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INDEX MATURITY: INITIAL INTEREST RATE: % INTEREST PAYMENT DATE(S):
SPREAD (PLUS OR SPREAD MULTIPLIER: INITIAL INTEREST RESET
MINUS): DATE:
MINIMUM INTEREST RATE: % MAXIMUM INTEREST RATE: % INTEREST RESET DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT CALCULATION AGENT:
DATE(S):
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: % from to .
[ ] Original Issue Discount Note Applicable Interest Rate Basis:
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral multiples
[ ] Other: thereof
[ ] Other:
EXCHANGE RATE AGENT:
DEFAULT RATE: %
ADDENDUM ATTACHED
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
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TRIBUNE COMPANY, a Delaware corporation (the "Company", which terms include
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to , or
registered assigns, the principal sum of , on the Stated
Maturity Date specified above (or any Redemption Date or Repayment Date, each as
defined on the reverse hereof) (each such Stated Maturity Date, Redemption Date
or Repayment Date being hereinafter referred to as the "Maturity Date" with
respect to the principal repayable on such date) and to pay interest thereon, at
a rate per annum equal to the Initial Interest Rate specified above until the
Initial Interest Reset Date specified above and thereafter at a rate determined
in accordance with the provisions specified above and on the reverse hereof with
respect to one or more Interest Rate Bases specified above until the principal
hereof is paid or duly made available for payment, and (to the extent that the
payment of such interest shall be legally enforceable) at the Default Rate per
annum specified above on any overdue principal, premium and/or interest. The
Company will pay interest in arrears on each Interest Payment Date, if any,
specified above (each, an "Interest Payment Date"), commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified above,
and on the Maturity Date; provided, however, that if the Original Issue Date
occurs between a Record Date (as defined below) and the next succeeding Interest
Payment Date, interest payments will commence on the second Interest Payment
Date next succeeding the Original Issue Date to the holder of this Note on the
Record Date with respect to such second Interest Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined on the reverse hereof) immediately preceding such
Interest Payment Date (the "Record Date"); provided, however, that interest
payable on the Maturity Date will be payable to the person to whom the principal
hereof and premium, if any, hereon shall be payable. Any such interest not so
punctually paid or duly provided for ("Defaulted Interest") will forthwith cease
to be payable to the holder on any Record Date, and shall be paid to the person
in whose name this Note is registered at the close of business on a special
record date (the "Special Record Date") for the payment of such Defaulted
Interest to be fixed by the Trustee hereinafter referred to, notice whereof
shall be given to the holder of this Note by the Trustee not less than 15
calendar days prior to such Special Record Date or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which this note may be listed, and upon such notice as
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may be required by such exchange, all as more fully provided for in the
Indenture.
Payment of principal, premium, if any, and interest in respect of this Note
due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for
that purpose in the Borough of Manhattan, The City of New York, currently
located at [ADDRESS], New York, New York [ZIP CODE], or at such other paying
agency in the Borough of Manhattan, The City of New York, as the Company may
determine; provided, however, that if such payment is to be made in a Specified
Currency other than United States dollars as set forth below, such payment will
be made by wire transfer of immediately available funds to an account with a
bank designated by the holder hereof at least 16 calendar days prior to the
Maturity Date, provided that such bank has appropriate facilities therefor and
that this Note (and, if applicable, a duly completed repayment election form) is
presented and surrendered at the aforementioned office of the Trustee in
time for the Trustee to make such payment in such funds in accordance with
its normal procedures. Payment of interest due on any Interest Payment Date
other than the Maturity Date will be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register
maintained at the aforementioned office of the Trustee; provided, however,
that a holder of U.S.$10,000,000 (or, if the Specified Currency specified above
is other than United States dollars, the equivalent thereof in the Specified
Currency) or more in aggregate principal amount of Notes (whether having
identical or different terms and provisions) will be entitled to receive
interest payments on such Interest Payment Date by wire transfer of immediately
available funds if appropriate wire transfer instructions have been received in
writing by the Trustee not less than 16 calendar days prior to such
Interest Payment Date. Any such wire transfer instructions received by the
Trustee shall remain in effect until revoked by such holder.
If any Interest Payment Date other than the Maturity Date would otherwise be
a day that is not a Business Day, such Interest Payment Date shall be postponed
to the next succeeding Business Day, except that if LIBOR is an applicable
Interest Rate Basis and such Business Day falls in the next succeeding calendar
month, such Interest Payment Date shall be the immediately preceding Business
Day. If the Maturity Date falls on a day that is not a Business Day, the
required payment of principal, premium, if any, and interest shall be made on
the next succeeding Business Day with the same force and effect as if made on
the date such payment was due, and no interest shall accrue with respect to such
payment for the period from and after the Maturity Date to the date of such
payment on the next succeeding Business Day.
The Company is obligated to make payment of principal, premium, if any, and
interest in respect of this Note in the Specified Currency (or, if the Specified
Currency is not at the
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time of such payment legal tender for the payment of public and private debts,
in such other coin or currency of the country which issued the Specified
Currency as at the time of such payment is legal tender for the payment of such
debts). If the Specified Currency is other than United States dollars, any such
amounts so payable by the Company will be converted by the Exchange Rate Agent
specified above into United States dollars for payment to the holder of this
Note; provided, however, that the holder of this Note may elect to receive such
amounts in such Specified Currency pursuant to the provisions set forth below.
If the Specified Currency is other than United States dollars and the holder
of this Note shall not have duly made an election to receive all or a specified
portion of any payment of principal, premium, if any, and/or interest in respect
of this Note in the Specified Currency, any United States dollar amount to be
received by the holder of this Note will be based on the highest bid quotation
in The City of New York received by the Exchange Rate Agent at approximately
11:00 A.M., New York City time, on the second Business Day preceding the
applicable payment date from three recognized foreign exchange dealers (one of
whom may be the Exchange Rate Agent) selected by the Exchange Rate Agent and
approved by the Company for the purchase by the quoting dealer of the Specified
Currency for United States dollars for settlement on such payment date in the
aggregate amount of the Specified Currency payable to all holders of Notes
scheduled to receive United States dollar payments and at which the applicable
dealer commits to execute a contract. All currency exchange costs will be borne
by the holder of this Note by deductions from such payments. If three such bid
quotations are not available, payments on this Note will be made in the
Specified Currency.
If the Specified Currency is other than United States dollars, the holder of
this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency by submitting a written request for such payment to the
Trustee at its corporate trust office in The City of New York on or prior
to the applicable Record Date or at least 16 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 16 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a composite
currency and the holder of this Note shall have duly made an election to receive
all or a specified portion of any payment of principal, premium, if any, and/or
interest in respect of this Note in the Specified
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Currency and if the Specified Currency is not available due to the imposition of
exchange controls or other circumstances beyond the control of the Company, the
Company will be entitled to satisfy its obligations to the holder of this Note
by making such payment in United States dollars on the basis of the Market
Exchange Rate (as defined below) on the second Business Day prior to such
payment date or, if such Market Exchange Rate is not then available, on the
basis of the most recently available Market Exchange Rate or as otherwise
specified on the face hereof. The "Market Exchange Rate" for the Specified
Currency means the noon dollar buying rate in The City of New York for cable
transfers for the Specified Currency as certified for customs purposes by (or if
not so certified, as otherwise determined by) the Federal Reserve Bank of New
York. Any payment made under such circumstances in United States dollars will
not constitute an Event of Default (as defined in the Indenture).
If the Specified Currency is a composite currency and the holder of this
Note shall have duly made an election to receive all or a specified portion of
any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Company or the Exchange Rate Agent on the
basis of the most recently available Market Exchange Rate for each such
Component Currency, or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Company or its agent
(including the Exchange Rate Agent) shall be at its sole
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discretion and shall, in the absence of manifest error, be conclusive for all
purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set forth on
the reverse hereof and, if so specified above, in the Addendum hereto, which
further provisions shall have the same force and effect as if set forth on the
face hereof.
Notwithstanding any provisions to the contrary contained herein, if the face
of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms set
forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, TRIBUNE COMPANY has caused this instrument to be
executed in its corporate name by the facsimile signatures of its Chairman of
the Board of Directors, its President, or one of its Vice Presidents, and its
Secretary or an Assistant Secretary and impressed or imprinted with its
corporate seal or a facsimile thereof.
TRIBUNE COMPANY
By__________________________ By__________________________
[Assistant] Secretary Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of
the series designated therein referred
to in the within-mentioned Indenture.
[TRUSTEE],
as Trustee
By____________________________ By____________________________
Authorized Signatory Authorized Signatory
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[REVERSE OF NOTE]
TRIBUNE COMPANY
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under an Indenture,
dated as of ______________, 1992, as amended, modified or supplemented from time
to time (the "Indenture"), between the Company and First Trust of Illinois,
National Association, as Successor Trustee (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 Debt Securities, and of the
terms upon which the Debt Securities are, and are to be, authenticated and
delivered. This Note is one of the series of Debt Securities designated as
"Medium-Term Notes Due Nine Months or More From Date of Issue" (the "Notes").
All terms used but not defined in this Note specified on the face hereof or in
an Addendum hereto shall have the meanings assigned to such terms in the
Indenture.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S.$1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or repayable prior to the
Stated Maturity Date.
This Note will be subject to redemption at the option of the Company
on any date on or after the Initial Redemption Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with unpaid
interest accrued thereon to the date fixed for redemption (each, a "Redemption
Date"), on notice given no more than 60 nor less than 30 calendar days prior to
the Redemption Date and in accordance with the provisions of the Indenture. The
"Redemption Price" shall initially be the Initial Redemption Percentage
specified on the face hereof multiplied by the unpaid principal amount of this
Note to be redeemed. The Initial Redemption Percentage shall decline at each
anniversary of the Initial Redemption Date by the Annual Redemption Percentage
Reduction, if any, specified on the face hereof until the Redemption Price is
100% of unpaid principal amount to be redeemed. In the event of redemption of
this Note in part only, a new Note of like tenor for the unredeemed portion
hereof and otherwise having
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the same terms as this Note shall be issued in the name of the holder hereof
upon the presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S.$1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, this Note must be
received, together with the form hereon entitled "Option to Elect Repayment"
duly completed, by the Trustee at its corporate trust office not more than 60
nor less than 30 calendar days prior to the Repayment Date. Exercise of such
repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If the Interest Category of this Note is specified on the face hereof
as an Original Issue Discount Note, the amount payable to the holder of this
Note in the event of redemption, repayment or acceleration of maturity of this
Note will be equal to the sum of (1) the Issue Price specified on the face
hereof (increased by any accruals of the Discount, as defined below) and, in the
event of any redemption of this Note (if applicable), multiplied by the Initial
Redemption Percentage (as adjusted by the Annual Redemption Percentage
Reduction, if applicable) and (2) any unpaid interest on this Note accrued from
the Original Issue Date to the Redemption Date, Repayment Date or date of
acceleration of maturity, as the case may be. The difference between the Issue
Price and 100% of the principal amount of this Note is referred to herein as the
"Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause an assumed yield on the
Note to be constant. The assumed constant yield will be calculated using a 30-
day month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a compounding period), a
constant coupon rate equal to the initial interest rate applicable to this Note
and an assumption that the maturity of this Note will not be accelerated. If
the period from the Original Issue Date to the initial Interest Payment Date
(the "Initial Period") is shorter than the compounding period for this Note, a
proportionate amount of the yield for an entire compounding period will be
accrued. If the Initial Period is longer than the compounding period, then such
period will be divided into a regular compounding period and a short period,
with the short period being treated as provided in the preceding sentence.
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The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note", an "Inverse Floating Rate Note"
or as having an Addendum attached, this Note shall be designated as a
"Regular Floating Rate Note" and, except as set forth below or on the face
hereof, shall bear interest at the rate determined by reference to the
applicable Interest Rate Basis or Bases (a) plus or minus the Spread, if any,
and/or (b) multiplied by the Spread Multiplier, if any, in each case as
specified on the face hereof. Commencing on the Initial Interest Reset Date,
the rate at which interest on this Note shall be payable shall be reset as of
each Interest Reset Date specified on the face hereof; provided, however,
that the interest rate in effect for the period, if any, from the Original
Issue Date to the Initial Interest Reset Date shall be the Initial Interest
Rate.
(ii) If the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note", then, except as set forth below
or on the face hereof, this Note shall bear interest at the rate determined
by reference to the applicable Interest Rate Basis or Bases (a) plus or minus
the Spread, if any, and/or (b) multiplied by the Spread Multiplier, if any.
Commencing on the Initial Interest Reset Date, the rate at which interest on
this Note shall be payable shall be reset as of each Interest Reset Date;
provided, however, that (y) the interest rate in effect for the period, if
any, from the Original Issue Date to the Initial Interest Reset Date shall be
the Initial Interest Rate and (z) the interest rate in effect for the period
commencing on the Fixed Rate Commencement Date specified on the face hereof
to the Maturity Date shall be the Fixed Interest Rate specified on the face
hereof or, if no such Fixed Interest Rate is specified, the interest rate in
effect hereon on the day immediately preceding the Fixed Rate Commencement
Date.
(iii) If the Interest Category of this Note is specified on the face
hereof as an "Inverse Floating Rate Note", then, except as set forth below or
on the face hereof, this Note shall bear interest at the Fixed Interest Rate
minus the rate determined by reference to the applicable Interest Rate Basis
or Bases (a) plus or minus the Spread, if any, and/or (b) multiplied by the
Spread Multiplier, if any; provided, however, that, unless otherwise
specified on the face hereof, the interest rate hereon shall not be less than
zero. Commencing on the Initial Interest Reset Date, the rate at which
interest on this Note shall be payable shall be reset as of each Interest
Reset Date; provided, however, that the interest rate in effect for the
period, if any, from the Original Issue Date to the Initial Interest Reset
Date shall be the Initial Interest Rate.
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Notwithstanding the foregoing, if this Note is designated as having an
Addendum on the face hereof, this Note shall bear interest in accordance with
the terms of the Addendum.
Unless otherwise specified on the face hereof, the rate with respect to
each Interest Rate Basis will be determined in accordance with the applicable
provisions below. Except as set forth above or on the face hereof, the
interest rate in effect on each day shall be (i) if such day is an Interest
Reset Date, the interest rate determined as of the Interest Determination
Date (as defined below) immediately preceding such Interest Reset Date or
(ii) if such day is not an Interest Reset Date, the interest rate determined
as of the Interest Determination Date immediately preceding the next
preceding Interest Reset Date.
If any Interest Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next
succeeding Business Day, except that if LIBOR is an applicable Interest Rate
Basis and such Business Day falls in the next succeeding calendar month, such
Interest Reset Date shall be the immediately preceding Business Day.
As used herein, "Business Day" means any day that is not a day on which
banking institutions are authorized or required by law, regulation or
executive order to close in The City of New York; provided, however, that if
the Specified Currency is other than United States dollars and any payment is
to be made in the Specified Currency in accordance with the provisions
hereof, such day is also not a day on which banking institutions are
authorized or required by law or executive order to close in the Principal
Financial Center (as defined below) of the country issuing the Specified
Currency (or, in the case of European Currency Units ("ECU"), is not a day
that appears as an ECU non-settlement day on the display designated as "ISDE"
on the Reuter Monitor Money Rates Service (or a day so designated by the ECU
Banking Association) or, if ECU non-settlement days do not appear on that
page (and are not so designated), is not a day on which payments in ECU
cannot be settled in the international interbank market); provided, further,
that if LIBOR is an applicable Interest Rate Basis, such day is also a London
Business Day (as defined below). "London Business Day" means (i) if the Index
Currency (as defined below) is other than ECU, any day on which dealings in
such Index Currency are transacted in the London interbank market or (ii) if
the Index Currency is ECU, any day that does not appear as an ECU non-
settlement day on the display designated as "ISDE" on the Reuter Monitor
Money Rates Service (or a day so designated by the ECU Banking Association)
or, if ECU non-settlement days do not appear on that page (and are not so
designated), is not a day on which payments in ECU cannot be settled in the
international interbank market. "Principal Financial Center" means the
capital city of the country issuing the Specified Currency, or solely with
respect to the calculation of LIBOR, the Index Currency, except that with
respect to United States dollars, Australian dollars, Deutsche marks, Dutch
guilders, Italian lire, Swiss francs and ECU, the "Principal Financial
Center" shall be The City of New York, Sydney, Frankfurt, Amsterdam, Milan,
Zurich and Luxembourg, respectively.
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The "Interest Determination Date" with respect to the CD Rate, the CMT
Rate, the Commercial Paper Rate, the Federal Funds Rate and the Prime Rate will
be the second Business Day immediately preceding the applicable Interest Reset
Date; the "Interest Determination Date" with respect to the Eleventh District
Cost of Funds Rate shall be the last working day of the month immediately
preceding the applicable Interest Reset Date on which the Federal Home Loan Bank
of San Francisco (the "FHLB of San Francisco") publishes the Index (as defined
below); and the "Interest Determination Date" with respect to LIBOR shall be the
second London Business Day immediately preceding the applicable Interest Reset
Date, unless the Index Currency is British pounds sterling, in which case the
"Interest Determination Date" will be the applicable Interest Reset Date. The
"Interest Determination Date" with respect to the Treasury Rate shall be the day
in the week in which the applicable Interest Reset Date falls on which day
Treasury Bills (as defined below) are normally auctioned (Treasury Bills are
normally sold at an auction held on Monday of each week, unless that day is a
legal holiday, in which case the auction is normally held on the following
Tuesday, except that such auction may be held on the preceding Friday);
provided, however, that if an auction is held on the Friday of the week
preceding the applicable Interest Reset Date, the Interest Determination Date
shall be such preceding Friday; and provided, further, that if an auction falls
on any Interest Reset Date, then the related Interest Reset Date will instead be
the first Business Day following such auction. If the interest rate of this
Note is determined with reference to two or more Interest Rate Bases specified
on the face hereof, the "Interest Determination Date" pertaining to this Note
shall be the most recent Business Day which is at least two Business Days prior
to the applicable Interest Reset Date on which each Interest Rate Basis is
determinable. Each Interest Rate Basis shall be determined as of such date, and
the applicable interest rate shall take effect on the related Interest Reset
Date.
CD Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified on the face hereof as published by the Board
of Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication ("H.15(519)") under the
heading "CDs (Secondary Market)", or, if not published by 3:00 P.M., New York
City time, on the related Calculation Date (as defined below), the rate on such
CD Rate Interest Determination Date for negotiable United States dollar
certificates of deposit of the Index Maturity as published by the Federal
Reserve Bank of New York in its daily statistical release "Composite 3:30 P.M.
Quotations for United States Government Securities" or any successor publication
("Composite Quotations") under the heading "Certificates of Deposit". If such
rate is not yet published in either H.15(519) or Composite Quotations by 3:00
P.M., New York City time, on the related Calculation Date, then the CD Rate on
such CD Rate Interest Determination Date will be calculated by the Calculation
Agent
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specified on the face hereof and will be the arithmetic mean of the secondary
market offered rates as of 10:00 A.M., New York City time, on such CD Rate
Interest Determination Date, of three leading nonbank dealers in negotiable
United States dollar certificates of deposit in The City of New York selected by
the Calculation Agent for negotiable certificates of deposit of major United
States money market banks for negotiable United States dollar certificates of
deposit with a remaining maturity closest to the Index Maturity in an amount
that is representative for a single transaction in that market at that time;
provided, however, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the CD Rate determined as of such CD
Rate Interest Determination Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
CMT Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CMT rate, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as the rate displayed on the Designated CMT Telerate Page (as defined
below) under the caption "...Treasury Constant Maturities...Federal Reserve
Board Release H.15...Mondays Approximately 3:45 P.M.", under the column for the
Designated CMT Maturity Index (as defined below) for (i) if the Designated CMT
Telerate Page is 7055, the rate on such CMT Rate Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the week, or the month, as
applicable, ended immediately preceding the week in which the related CMT Rate
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page or is not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published or is not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City time, on
such CMT Rate Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each, a "Reference Dealer") in The City of New York (which may include the
Agent or its Affiliates) selected by the Calculation Agent (from five such
Reference Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in
14
<PAGE>
the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest)), for the most recently issued
direct noncallable fixed rate obligations of the United States ("Treasury
Notes") with an original maturity of approximately the Designated CMT Maturity
Index and a remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year. If the Calculation Agent is unable to obtain
three such Treasury Note quotations, the CMT Rate on such CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market offer
side prices as of approximately 3:30 P.M., New York City time, on such CMT Rate
Interest Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least U.S.$100 million. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of such quotes will be eliminated; provided, however, that if fewer than
three Reference Dealers selected by the Calculation Agent are quoting as
mentioned herein, the CMT Rate determined as of such CMT Rate Interest
Determination Date will be the CMT Rate in effect on such CMT Rate Interest
Determination Date. If two Treasury Notes with an original maturity as described
in the second preceding sentence have remaining terms to maturity equally close
to the Designated CMT Maturity Index, the Calculation Agent will obtain from
five Reference Dealers quotations for the Treasury Note with the shorter
remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page specified on the face hereof (or any other page as
may replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)) for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the United States Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index shall be 2 years.
Commercial Paper Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial Paper
Rate shall be determined as of the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date") as the Money Market Yield
(as defined below)
15
<PAGE>
on such date of the rate for commercial paper having the Index Maturity as
published in H.15(519) under the heading "Commercial Paper". In the event that
such rate is not published by 3:00 P.M., New York City time, on such Calculation
Date, then the Commercial Paper Rate on such Commercial Paper Rate Interest
Determination Date will be the Money Market Yield of the rate for commercial
paper having the Index Maturity as published in Composite Quotations under the
heading "Commercial Paper" (with an Index Maturity of one month or three months
being deemed to be equivalent to an Index Maturity of 30 days or 90 days,
respectively). If such rate is not yet published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on such Calculation Date,
then the Commercial Paper Rate on such Commercial Paper Rate Interest
Determination Date will be calculated by the Calculation Agent and shall be the
Money Market Yield of the arithmetic mean of the offered rates at approximately
11:00 A.M., New York City time, on such Commercial Paper Rate Interest
Determination Date of three leading dealers of commercial paper in The City of
New York selected by the Calculation Agent for commercial paper having the Index
Maturity placed for an industrial issuer whose bond rating is "AA", or the
equivalent from a nationally recognized statistical rating organization;
provided, however, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the Commercial Paper Rate determined
as of such Commercial Paper Rate Interest Determination Date will be the
Commercial Paper Rate in effect on such Commercial Paper Rate Interest
Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
D x 360
Money Market Yield = --------------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
Eleventh District Cost of Funds Rate. If an Interest Rate Basis for
this Note is specified on the face hereof as the Eleventh District Cost of Funds
Rate, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Interest Determination Date (an "Eleventh District Cost of Funds Rate
Interest Determination Date") as the rate equal to the monthly weighted average
cost of funds for the calendar month immediately preceding the month in which
such Eleventh District Cost of Funds Rate Interest Determination Date falls, as
set forth under the caption "11th District" on Telerate Page 7058 as of 11:00
A.M., San Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on Telerate Page 7058 on such
Eleventh District Cost of Funds Rate Interest Determination Date, then the
Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan
16
<PAGE>
Bank District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month immediately preceding the
date of such announcement. If the FHLB of San Francisco fails to announce the
Index on or prior to such Eleventh District Cost of Funds Rate Interest
Determination Date for the calendar month immediately preceding such Eleventh
District Cost of Funds Rate Interest Determination Date, the Eleventh District
Cost of Funds Rate determined as of such Eleventh District Cost of Funds Rate
Interest Determination Date will be the Eleventh District Cost of Funds Rate in
effect on such Eleventh District Cost of Funds Rate Interest Determination Date.
Federal Funds Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds Rate
shall be determined as of the applicable Interest Determination Date (a "Federal
Funds Rate Interest Determination Date") as the rate on such date for United
States dollar federal funds as published in H.15(519) under the heading "Federal
Funds (Effective)" or, if not published by 3:00 P.M., New York City time, on the
Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date as published in Composite Quotations under the heading "Federal
Funds/Effective Rate". If such rate is not published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on the related
Calculation Date, then the Federal Funds Rate on such Federal Funds Interest
Determination Date shall be calculated by the Calculation Agent and will be the
arithmetic mean of the rates for the last transaction in overnight United States
dollar federal funds arranged by three leading brokers of federal funds
transactions in The City of New York selected by the Calculation Agent, prior to
9:00 A.M., New York City time, on such Federal Funds Rate Interest Determination
Date; provided, however, that if the brokers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination Date will be the
Federal Funds Rate in effect on such Federal Funds Rate Interest Determination
Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the
face hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of
the applicable Interest Determination Date (a "LIBOR Interest Determination
Date") in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in which case such
single rate will be used) for deposits in the Index Currency having the Index
Maturity designated on the face hereof, commencing on the second London Business
Day immediately following that LIBOR Interest Determination Date that appear
(or, if only a single rate is required as aforesaid, appears) on the Designated
LIBOR Page (as defined below) as of 11:00 A.M., London time, on such LIBOR
Interest Determination Date, or (b) "LIBOR Telerate" is specified on the face
hereof, or if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on the
17
<PAGE>
face hereof as the method for calculating LIBOR, the rate for deposits in the
Index Currency having the Index Maturity designated on the face hereof,
commencing on the second London Business Day immediately following that LIBOR
Interest Determination Date, that appears on the Designated LIBOR Page as of
11:00 A.M., London time, on such LIBOR Interest Determination Date. If fewer
than two such offered rates appear, or if no such rate appears, as applicable,
LIBOR on such LIBOR Interest Determination Date shall be determined in
accordance with the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or no rate appears, as the case may be, on
the Designated LIBOR Page as specified in clause (i) above, the Calculation
Agent shall request the principal London offices of each of four major reference
banks in the London interbank market, as selected by the Calculation Agent, to
provide the Calculation Agent with its offered quotation for deposits in the
Index Currency for the period of the Index Maturity, commencing on the second
London Business Day immediately following such LIBOR Interest Determination Date
on the applicable Interest Reset Date, to prime banks in the London interbank
market at approximately 11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is representative for a single
transaction in such Index Currency in such market at such time. If at least two
such quotations are so provided, then LIBOR on such LIBOR Interest Determination
Date will be the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted at approximately 11:00 A.M., in
the applicable Principal Financial Center, on such LIBOR Interest Determination
Date by three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Index Currency to leading European banks,
having the Index Maturity and in a principal amount that is representative for a
single transaction in such Index Currency in such market at such time; provided,
however, that if the banks so selected by the Calculation Agent are not quoting
as mentioned in this sentence, LIBOR determined as of such LIBOR Interest
Determination Date shall be LIBOR in effect on such LIBOR Interest Determination
Date.
"Index Currency" means the currency or composite currency specified on
the face hereof as to which LIBOR shall be calculated. If no such currency or
composite currency is specified on the face hereof, the Index Currency shall be
United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on
the face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) for the purpose of displaying the London interbank rates of
major banks for the Index Currency, or (b) if "LIBOR Telerate" is specified on
the face hereof, the display on the Dow Jones Telerate Service for the purpose
of displaying the London Interbank rates of major banks for the applicable Index
Currency. If neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on the
face hereof as the method for calculating LIBOR, the display on the Dow Jones
Telerate Service
18
<PAGE>
(or any successor service) for the purpose of displaying the London interbank
rates of major banks for the Index Currency.
Prime Rate. If an Interest Rate Basis for this Note is specified on
the face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
heading "Bank Prime Loan". If such rate is not published prior to 3:00 P.M.,
New York City time, on the related Calculation Date, then the Prime Rate shall
be the arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen USPRIME1 (as defined below) as such bank's
prime rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 for such Prime Rate Interest Determination Date, the Prime Rate shall
be the arithmetic mean of the prime rates quoted on the basis of the actual
number of days in the year divided by a 360-day year as of the close of business
on such Prime Rate Interest Determination Date by four major money center banks
in The City of New York selected by the Calculation Agent. If fewer than two
such quotations are so provided, the Prime Rate shall be determined by the
Calculation Agent as the arithmetic mean of three prime rates quoted on the
basis of the actual number of days in the year divided by a 360-day year as of
the close of business on such Prime Rate Interest Determination Date as
furnished in The City of New York by substitute banks or trust companies
organized and doing business under the laws of the United States, or any State
thereof, each having total equity capital of at least U.S.$500 million and being
subject to supervision or examination by Federal or State authority, selected by
the Calculation Agent to provide such rate or rates; provided, however, that if
the banks or trust companies so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Prime Rate determined as of such
Prime Rate Interest Determination Date will be the Prime Rate in effect on such
Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1" means the display designated as page
"USPRIME1" on the Reuters Monitor Money Rates Service (or such other page as may
replace the USPRIME1 page on that service for the purpose of displaying prime
rates or base lending rates of major United States banks).
Treasury Rate. If an Interest Rate Basis for this Note is specified
on the face hereof as the Treasury Rate, the Treasury Rate shall be determined
as of the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate applicable to the most recent auction (the
"Auction") of direct obligations of the United States ("Treasury Bills") having
the Index Maturity, as such rate is published in H.15(519) under the heading
"Treasury bills-auction average (investment)" or, if not published by 3:00 P.M.,
New York City time, on the related Calculation Date, the auction average rate of
such Treasury Bills (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) as otherwise
19
<PAGE>
announced by the United States Department of the Treasury. In the event that the
results of the Auction of Treasury Bills having the Index Maturity are not
reported as provided above by 3:00 P.M., New York City time, on such Calculation
Date, or if no such Auction is held, then the Treasury Rate shall be calculated
by the Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) of the arithmetic mean of the secondary market bid rates, as
of approximately 3:30 P.M., New York City time, on such Treasury Rate Interest
Determination Date, of three leading primary United States government securities
dealers (which may include the Agents) selected by the Calculation Agent, for
the issue of Treasury Bills with a remaining maturity closest to the Index
Maturity; provided, however, that if the dealers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate
determined as of such Treasury Rate Interest Determination Date will be the
Treasury Rate in effect on such Treasury Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The Calculation Agent shall calculate the interest rate hereon on or
before each Calculation Date. The "Calculation Date", if applicable, pertaining
to any Interest Determination Date shall be the earlier of (i) the tenth
calendar day after such Interest Determination Date or, if such day is not a
Business Day, the next succeeding Business Day or (ii) the Business Day
immediately preceding the applicable Interest Payment Date or the Maturity Date,
as the case may be. At the request of the Holder hereof, the Calculation Agent
will provide to the Holder hereof the interest rate hereon then in effect and,
if determined, the interest rate that will become effective as a result of a
determination made for the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued
interest factor shall be computed by adding the interest factor calculated for
each day in the applicable Interest Period. Unless otherwise specified as the
Day Count Convention on the face hereof, the interest factor for each such date
shall be computed by dividing the interest rate applicable to such day by 360 if
the CD Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds
Rate, the Federal Funds Rate, LIBOR or the Prime Rate is an applicable Interest
Rate Basis or by the actual number of days in the year if the CMT Rate or the
Treasury Rate is an applicable Interest Rate Basis. Unless otherwise specified
as the Day Count Convention on the face hereof, the interest factor for this
Note, if the interest rate is calculated with reference to two or more Interest
Rate Bases, shall be calculated in each period in the same manner as if only the
20
<PAGE>
Applicable Interest Rate Basis specified on the face hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards, and all amounts used in or
resulting from such calculation on this Note shall be rounded, in the case of
United States dollars, to the nearest cent or, in the case of a Specified
Currency other than United States dollars, to the nearest unit (with one-half
cent or unit being rounded upwards).
If an Event of Default, as defined in the Indenture, shall occur and
be continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
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 Debt Securities at any time by the
Company and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Debt Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Debt Securities of any series, on behalf of the
holders of all such Debt Securities, to waive compliance by the Company with
certain provisions of the Indenture. Furthermore, provisions in the Indenture
permit the holders of not less than a majority of the aggregate principal amount
of the outstanding Debt Securities of any series, in certain instances, to
waive, on behalf of all of the holders of Debt Securities of such series,
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the holder of this Note shall be conclusive and binding
upon such holder and upon all future holders of this Note and other Notes issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, the transfer of this Note is registrable in the
Security Register of the Company upon
21
<PAGE>
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal hereof and any premium or interest
hereon are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the holder hereof or by his attorney duly authorized in writing,
and thereupon one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denominations but otherwise
having the same terms and conditions, as requested by the holder hereof
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of Illinois applicable to agreements made
and to be performed entirely in such State.
22
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------
| |
|______________________________|____________________________________________
____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
____________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________ Attorney to
transfer this Note on the books of the Trustee, with full power of substitution
in the premises.
Dated:_____________________ _______________________________________
_______________________________________
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of
this Note in every particular, without
alteration or enlargement or any
change whatsoever.
23
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, currently
located at __________________________________________, not more than 60 nor less
than 30 calendar days prior to the Repayment Date, this Note with this "Option
to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $_____________ ______________________________
Notice: The signature(s) on
Date: ______________________ this Option to Elect Repayment must
correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatsoever.
24
<PAGE>
MBP DRAFT
4/22/96
[FACE OF NOTE]
TRIBUNE COMPANY
MEDIUM-TERM NOTE
(Fixed Rate)
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN./1/
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE 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./2/
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. FXR-___ ________ __________
TRIBUNE COMPANY
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
INTEREST PAYMENT DATE(S) DEFAULT RATE: %
[ ] _______ and ______
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
________________________
/1/ This paragraph applies to global Notes only.
/2/ This paragraph applies to global Notes only.
<PAGE>
REDUCTION: %
OPTIONAL REPAYMENT [ ] CHECK IF AN ORIGINAL
DATE(S): ISSUE DISCOUNT NOTE
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
[ ] United States dollars [ ] $1,000 and integral AGENT:
[ ] Other: multiples thereof
[ ] Other:
ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
2
<PAGE>
TRIBUNE COMPANY, a Delaware Corporation (the "Company", which terms
include any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ,
or registered assigns, the principal sum of , on the Stated
Maturity Date specified above (or any Redemption Date or Repayment Date, each as
defined on the reverse hereof) (each such Stated Maturity Date, Redemption Date
or Repayment Date being hereinafter referred to as the "Maturity Date" with
respect to the principal repayable on such date) and to pay interest thereon, at
the Interest Rate per annum specified above, until the principal hereof is paid
or duly made available for payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the Default Rate per annum specified
above on any overdue principal, premium and/or interest. The Company will pay
interest in arrears on each Interest Payment Date, if any, specified above
(each, an "Interest Payment Date"), commencing with the first Interest Payment
Date next succeeding the Original Issue Date specified above, and on the
Maturity Date; provided, however, that if the Original Issue Date occurs between
a Record Date (as defined below) and the next succeeding Interest Payment Date,
interest payments will commence on the second Interest Payment Date next
succeeding the Original Issue Date to the holder of this Note on the Record Date
with respect to such second Interest Payment Date. Interest on this Note will be
computed on the basis of a 360-day year of twelve 30-day months.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified above, this Note
shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions".
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (the "Record Date"); provided, however, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereof and
premium, if any, hereon shall be payable. Any such interest not so punctually
paid or duly provided for ("Defaulted Interest") will forthwith cease to be
payable to the holder on any Record Date, and shall be paid to the person in
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee hereinafter referred
3
<PAGE>
to, notice whereof shall be given to the holder of this Note by the Trustee not
less than 15 calendar days prior to such Special Record Date or may be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which this note may be listed, and upon such notice
as may be required by such exchange, all as more fully provided for in the
Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for
that purpose in the Borough of Manhattan, The City of New York, currently
located at [ADDRESS], New York, New York [ZIP CODE], or at such other paying
agency in the Borough of Manhattan, The City of New York, as the Company may
determine; provided, however, that if such payment is to be made in a Specified
Currency other than United States dollars as set forth below, such payment will
be made by wire transfer of immediately available funds to an account with a
bank designated by the holder hereof at least 16 calendar days prior to the
Maturity Date, provided that such bank has appropriate facilities therefor and
that this Note (and, if applicable, a duly completed repayment election form) is
presented and surrendered at the aforementioned office of the Trustee in
time for the Trustee to make such payment in such funds in accordance with
its normal procedures. Payment of interest due on any Interest Payment Date
other than the Maturity Date will be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register
maintained at the aforementioned office of the Trustee; provided, however,
that a holder of U.S.$10,000,000 (or, if the Specified Currency specified above
is other than United States dollars, the equivalent thereof in the Specified
Currency) or more in aggregate principal amount of Notes (whether having
identical or different terms and provisions) will be entitled to receive
interest payments on such Interest Payment Date by wire transfer of immediately
available funds if appropriate wire transfer instructions have been received in
writing by the Trustee not less than 16 calendar days prior to such
Interest Payment Date. Any such wire transfer instructions received by the
Trustee shall remain in effect until revoked by such holder.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the same
force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
4
<PAGE>
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law or executive order to close in The City of New
York; provided, however, that if the Specified Currency is other than United
States dollars and any payment is to be made in the Specified Currency in
accordance with the provisions hereof, such day is also not a day on which
banking institutions are authorized or required by law or executive order to
close in the Principal Financial Center (as defined below) of the country
issuing the Specified Currency (or, in the case of European Currency Units
("ECU"), is not a day that appears as an ECU non-settlement day on the display
designated as "ISDE" on the Reuter Monitor Money Rates Service (or a day so
designated by the ECU Banking Association) or, if ECU non-settlement days do not
appear on that page (and are not so designated), is not a day on which payments
in ECU cannot be settled in the international interbank market). "Principal
Financial Center" means the capital city of the country issuing the Specified
Currency, except that with respect to United States dollars, Australian dollars,
Deutsche marks, Dutch guilders, Italian lire, Swiss francs and ECU, the
"Principal Financial Center" shall be The City of New York, Sydney, Frankfurt,
Amsterdam, Milan, Zurich and Luxembourg, respectively.
The Company is obligated to make payment of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, any such amounts so payable by the Company will be
converted by the Exchange Rate Agent specified above into United States dollars
for payment to the holder of this Note; provided, however, that the holder of
this Note may elect to receive such amounts in such Specified Currency pursuant
to the provisions set forth below.
If the Specified Currency is other than United States dollars and the
holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Company for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes scheduled to receive United States
5
<PAGE>
dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the holder of this Note
by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or
prior to the applicable Record Date or at least 16 calendar days prior to the
Maturity Date, as the case may be. Such written request may be mailed or hand
delivered or sent by cable, telex or other form of facsimile transmission. The
holder of this Note may elect to receive all or a specified portion of all
future payments in the Specified Currency in respect of such principal, premium,
if any, and/or interest and need not file a separate election for each payment.
Such election will remain in effect until revoked by written notice to the
Trustee, but written notice of any such revocation must be received by the
Trustee on or prior to the applicable Record Date or at least 16 calendar
days prior to the Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below) on the second Business Day prior to such payment date or, if
such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes by (or if not so certified, as
otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default (as defined in the Indenture).
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to
6
<PAGE>
satisfy its obligations to the holder of this Note by making such payment in
United States dollars. The amount of each payment in United States dollars shall
be computed by the Exchange Rate Agent on the basis of the equivalent of the
composite currency in United States dollars. The component currencies of the
composite currency for this purpose (collectively, the "Component Currencies"
and each, a "Component Currency") shall be the currency amounts that were
components of the composite currency as of the last day on which the composite
currency was used. The equivalent of the composite currency in United States
dollars shall be calculated by aggregating the United States dollar equivalents
of the Component Currencies. The United States dollar equivalent of each of the
Component Currencies shall be determined by the Company or the Exchange Rate
Agent on the basis of the most recently available Market Exchange Rate for each
such Component Currency, or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Company or its agent
(including the Exchange Rate Agent) shall be at its sole discretion and shall,
in the absence of manifest error, be conclusive for all purposes and binding on
the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
7
<PAGE>
IN WITNESS WHEREOF, TRIBUNE COMPANY has caused this instrument to be
executed in its corporate name by the facsimile signatures of its Chairman of
the Board of Directors, its President, or one of its Vice Presidents, and its
Secretary or an Assistant Secretary and impressed or imprinted with its
corporate seal or a facsimile thereof.
TRIBUNE COMPANY
By_________________________________ By_______________________________________
[Assistant] Secretary Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of
the series designated therein referred
to in the within-mentioned Indenture.
[TRUSTEE],
as Trustee
By_________________________________ By_______________________________________
Authorized Signatory Authorized Signatory
8
<PAGE>
[REVERSE OF NOTE]
TRIBUNE COMPANY
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under an Indenture,
dated as of March 1, 1992, as amended, modified or supplemented from time to
time (the "Indenture"), between the Company and First Trust of Illinois,
National Association, as successor Trustee (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 Debt Securities, and of the
terms upon which the Debt Securities are, and are to be, authenticated and
delivered. This Note is one of the series of Debt Securities designated as
"Medium-Term Notes Due Nine Months or More From Date of Issue" (the "Notes").
All terms used but not defined in this Note specified on the face hereof or in
an Addendum hereto shall have the meanings assigned to such terms in the
Indenture.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S.$1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or repayable prior to the
Stated Maturity Date.
This Note will be subject to redemption at the option of the Company
on any date on or after the Initial Redemption Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with unpaid
interest accrued thereon to the date fixed for redemption (each, a "Redemption
Date"), on notice given no more than 60 nor less than 30 calendar days prior to
the Redemption Date and in accordance with the provisions of the Indenture. The
"Redemption Price" shall initially be the Initial Redemption Percentage
specified on the face hereof multiplied by the unpaid principal amount of this
Note to be redeemed. The Initial Redemption Percentage shall decline at each
anniversary of the Initial Redemption Date by the Annual Redemption Percentage
Reduction, if any, specified on the face hereof until the Redemp tion Price is
100% of unpaid principal amount to be redeemed. In
9
<PAGE>
the event of redemption of this Note in part only, a new Note of like tenor for
the unredeemed portion hereof and otherwise having the same terms as this Note
shall be issued in the name of the holder hereof upon the presentation and
surrender hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S.$1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, this Note must be
received, together with the form hereon entitled "Option to Elect Repayment"
duly completed, by the Trustee at its corporate trust office not more than 60
nor less than 30 calendar days prior to the Repayment Date. Exercise of such
repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(1) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this Note
(if applicable), multiplied by the Initial Redemption Percentage (as adjusted by
the Annual Redemption Percentage Reduction, if applicable) and (2) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note to
be constant. The constant yield will be calculated using a 30-day month, 360-
day year convention, a compounding period that, except for the Initial Period
(as defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period) and an assumption that
the maturity of this Note will not be accelerated. If the period from the
Original Issue Date to the initial Interest Payment Date (the "Initial Period")
is shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular
10
<PAGE>
compounding period and a short period, with the short period being treated as
provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and
be continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
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 Debt Securities at any time by the
Company and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Debt Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Debt Securities of any series, on behalf of the
holders of all such Debt Securities, to waive compliance by the Company with
certain provisions of the Indenture. Furthermore, provisions in the Indenture
permit the holders of not less than a majority of the aggregate principal amount
of the outstanding Debt Securities of any series, in certain instances, to
waive, on behalf of all of the holders of Debt Securities of such series,
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the holder of this Note shall be conclusive and binding
upon such holder and upon all future holders of this Note and other Notes issued
upon the registration of transfer hereof or in exchange heretofore or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, the transfer of this Note is registrable in the
Security Register of the Company upon surrender of this Note for registration of
transfer at the office or agency of the Company in any place where the principal
hereof and any premium or interest hereon are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the holder hereof or by his
attorney duly authorized
11
<PAGE>
in writing, and thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denominations but otherwise
having the same terms and conditions, as requested by the holder hereof
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of Illinois applicable to agreements made
and to be performed entirely in such State.
12
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act________________________________________
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above
list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
________________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing
_______________________________________________________________________ Attorney
to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:______________________________ _________________________________________
_________________________________________
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of this
Note in every particular, with out
alteration or enlargement or any change
whatsoever.
13
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at ____________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, currently
located at ______________________________________, not more than 60 nor less
than 30 calendar days prior to the Repayment Date, this Note with this "Option
to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $___________________ _________________________________________
Date: ____________________________ Notice: The signature(s) on this Option
to Elect Repayment must correspond with
the name(s) as written upon the face of
this Note in every particular, without
alteration or enlargement or any change
whatsoever.
14
<PAGE>
Exhibit 5
---------
Sidley & Austin
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
LOS ANGELES One First National Plaza LONDON
______ Chicago, Illinois 60603 ______
NEW YORK Telephone 312: 853-7000 SINGAPORE
______ Telex 25-4364 ______
WASHINGTON, D.C. Facsimile 312: 853-7036 TOKYO
Founded 1866
WRITER'S DIRECT NUMBER
April 25, 1996
Tribune Company
435 North Michigan Avenue
Chicago, Illinois 60611
Re: Registration Statement on Form S-3
$500,000,000 Aggregate Initial Public
Offering Price of Debt Securities and
Warrants to Purchase Debt Securities
-------------------------------------
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3 (the "Registration
Statement") being filed by Tribune Company (the "Company") with the Securities
and Exchange Commission (the "SEC") under the Securities Act of 1933, as amended
(the "Securities Act"), relating to the shelf registration of $500,000,000
aggregate initial public offering price of the Company's debt securities (the
"Debt Securities") and warrants to purchase Debt Securities (the "Warrants").
The Debt Securities are to be issued under the Indenture, dated as of March 1,
1992 (the "Indenture"), between the Company and First Trust of Illinois,
National Association, as successor trustee (the "Trustee"). The Warrants are to
be issued under a Warrant Agreement, the form of which was filed as Exhibit 4.3
to the Company's Registration Statement on Form S-3, Registration No. 33-45793
(a "Warrant Agreement").
We are familiar with the proceedings to date with respect to the
proposed issuance and sale of the Debt Securities and the Warrants and have
examined such records, documents and questions of law, and satisfied ourselves
as to such matters of fact, as we have considered relevant and necessary as a
basis for this opinion.
<PAGE>
SIDLEY & AUSTIN CHICAGO
Tribune Company
April 25, 1996
Page 2
Based on the foregoing, we are of the option that:
1. Each series of Debt Securities will be legally issued and binding
obligations of the Company (except to the extent enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws affecting the enforcement of
creditors' rights generally and by the effect of general principles of
equity, regardless of whether enforceability is considered in a proceeding
in equity or at law) when (i) the Registration Statement, as finally
amended (including any necessary post-effective amendments), shall have
become effective under the Securities Act; (ii) a Prospectus Supplement
(including any Pricing Supplement) with respect to such series of Debt
Securities shall have been filed with the SEC pursuant to Rule 424 under
the Securities Act; (iii) the Company's Board of Directors or a duly
authorized committee thereof shall have duly adopted final resolutions
authorizing the issuance and sale of such series of Debt Securities as
contemplated by the Registration Statement and the Indenture; and (iv) such
series of Debt Securities shall have been duly executed and authenticated
as provided in the Indenture and such resolutions and shall have been duly
delivered to the purchasers thereof against payment of the agreed
consideration therefor.
2. Each series of Warrants will be legally issued and binding
obligations of the Company (except to the extent enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws affecting the enforcement of
creditors' rights generally and by the effect of general principles of
equity, regardless of whether enforceability is considered in a proceeding
in equity or at law) when (i) the Registration Statement, as finally
amended (including any necessary post-effective amendments), shall have
become effective under the Securities Act and a Warrant Agreement shall
have been duly executed and delivered by the Company and the Warrant Agent
(as defined in the Warrant Agreement); (ii) a Prospectus Supplement
(including any Pricing Supplement) with respect to such series of Warrants
shall have been filed with the SEC pursuant to Rule 424 under the
Securities Act; (iii) the Company's Board of Directors or a duly authorized
committee thereof shall have duly
<PAGE>
SIDLEY & AUSTIN CHICAGO
Tribune Company
April 25, 1996
Page 3
adopted final resolutions authorizing the issuance and sale of such series
of Warrants as contemplated by the Registration Statement and the Warrant
Agreement; and (iv) such series of Warrants shall have been duly executed
and authenticated as provided in the Warrant Agreement and such resolutions
and shall have been duly delivered to the purchasers thereof against
payment of the agreed consideration therefor.
This opinion is limited to the General Corporation Law of the State of
Delaware, the laws of the State of Illinois and the federal laws of the United
States of America. For purposes of this opinion, we have assumed that there
will be no changes in the laws currently applicable to the Company and that such
laws will be the only laws applicable to the Company.
We do not find it necessary for the purposes of this opinion to cover,
and accordingly we express no opinion as to, the application of the securities
or blue sky laws of the various states to the sale of the Debt Securities or the
Warrants.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm included under the
caption "Legal Matters" in the Prospectus forming a part of the Registration
Statement. In giving such consent, we do not thereby admit that we are within
the category of persons whose consent is required by Section 7 of the Securities
Act or the related Rules promulgated by the SEC.
Newton N. Minow, a director of the Company, is Counsel to this firm.
Very truly yours,
Sidley & Austin
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated January 31, 1996, appearing in the 1995 Annual Report to Stockholders of
Tribune Company which is incorporated by reference in Tribune Company's Annual
Report on Form 10-K for the year ended December 31, 1995. We also consent to
the incorporation by reference of our report on the Financial Statement
Schedule, appearing in such Annual Report on Form 10-K. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
Price Waterhouse LLP
Chicago, Illinois
April , 1996
<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)
----------------
FIRST TRUST OF ILLINOIS,
NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
36-4046888
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
400 NORTH MICHIGAN AVENUE, 60611
CHICAGO, ILLINOIS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
----------------
JOHN W. PORTER
FIRST TRUST OF ILLINOIS, NATIONAL ASSOCIATION
400 N. MICHIGAN AVENUE, FLOOR 2S
CHICAGO, ILLINOIS 60611
TELEPHONE (312) 836-6736
(NAME, ADDRESS, AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
----------------
TRIBUNE COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-1880355
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
435 N. MICHIGAN AVENUE 60611
CHICAGO, ILLINOIS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
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 the Currency, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING SECURITIES OF
THE TRUSTEE:
AS OF APRIL 17, 1996
<TABLE>
<CAPTION>
COL. B
COL. A AMOUNT
TITLE OF CLASS OUTSTANDING
-------------- -----------
<S> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY OTHER
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
Not applicable by virtue of response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM
THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1) OF
THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER
INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES
WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER
INDENTURE.
Not applicable by virtue of response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE TRUSTEE
IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR REPRESENTATIVE OF THE
OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON HAVING
ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION.
Not applicable by virtue of response to Item 13.
1
<PAGE>
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE TRUSTEE
OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND EXECUTIVE
OFFICER OF THE OBLIGOR.
AS OF APRIL 17, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE
OF VOTING
SECURITIES
REPRESENTED
BY AMOUNT
NAME OF TITLE OF AMOUNT OWNED GIVEN
OWNER CLASS BENEFICIALLY IN COL. C
------- -------- ------------ -----------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE TRUSTEE
OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH DIRECTOR,
PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
AS OF APRIL 17, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE
OF VOTING
SECURITIES
REPRESENTED
BY AMOUNT
NAME OF TITLE OF AMOUNT OWNED GIVEN
OWNER CLASS BENEFICIALLY IN COL. C
------- -------- ------------ -----------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR OWNED
BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY THE
TRUSTEE:
AS OF APRIL 17, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
WHETHER
THE
SECURITIES
ARE VOTING
OR AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
TITLE OF NONVOTING HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
CLASS SECURITIES FOR OBLIGATIONS IN DEFAULT GIVEN IN COL. C
-------- ---------- ---------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
2
<PAGE>
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF APRIL 17, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
NAME OF ISSUER AS COLLATERAL SECURITY REPRESENTED BY
AND TITLE OF AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN IN
CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR
OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH THE
FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON.
AS OF APRIL 17, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
NAME OF ISSUER AS COLLATERAL SECURITY REPRESENTED BY
AND TITLE OF AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN IN
CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 11. OWNERSHIP OF HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE
TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF APRIL 17, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
NAME OF ISSUER AS COLLATERAL SECURITY REPRESENTED BY
AND TITLE OF AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN IN
CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
3
<PAGE>
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
AS OF APRIL 17, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
- ---------------------- ------------------ --------
<S> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the
securities under this indenture.
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY OTHER
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS
BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the
securities under this indenture. The trustee is a trustee under
other indentures under which securities issued by the obligor are
outstanding. There is not and there has not been a default with
respect to the securities outstanding under such other indentures.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEES, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED
UNDER THE ACT.
Not applicable.
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 First Trust of Illinois,
National Association as now in effect, incorporated herein by reference to
Exhibit 1 to T-1; Registration No. 33-64175.
2. A copy of the certificate of authority to commence business,
incorporated herein by reference to Exhibit 2 to T-1; Registration No. 33-
64175.
3. A copy of the certificate of authority to exercise corporate trust
powers, incorporated herein by reference to Exhibit 3 to T-1; Registration
No. 33-64175.
4. A copy of the existing By-Laws of First Trust of Illinois, National
Association as now in effect, incorporated herein by reference to Exhibit 4
to T-1; Registration No. 33-64175.
4
<PAGE>
5. Not applicable by virtue of response to Item 13.
6. The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939, incorporated herein by reference to Exhibit 6 to T-
1; Registration No. 33-64175.
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, filed herewith.
8. Not applicable.
9. Not applicable.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE TRUSTEE,
FIRST TRUST OF ILLINOIS, NATIONAL ASSOCIATION, 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, AS OF THE 17TH DAY OF APRIL, 1996.
First Trust of Illinois, National
Association
/s/ John W. Porter
By __________________________________
John W. Porter
Vice President and Secretary
5
<PAGE>
EXHIBIT 7
FIRST TRUST OF ILLINOIS, NATIONAL ASSOCIATION
Consolidated Report of Condition and Income for a
Bank With Domestic and Foreign Offices--FFIEC 031
Report at the close of business December 31, 1995
THE ENTIRE REPORT IS NOT ATTACHED. THE FOLLOWING TWO PAGES,
WHICH REFLECT BALANCE SHEET INFORMATION, HAVE BEEN
EXCERPTED FROM THE REPORT.
<PAGE>
First Trust of Illinois, National A Call Date 12/31/95 Page RC-1
400 North Michigan Avenue Vendor ID: D CERT: 34094
Chicago, IL 60611
9
Transit Number: 09600069
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the most outstanding as of the last business day of the
quarter.
Schedule RC - Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS
RCOM
1. Cash and balances due from depository institutions (from Schedule RC-A): ----
a. Noninterest-bearing balances and currency and coin (1)___________________________ 0081. . 69,279 1.a
b. Interest-bearing balances (2)____________________________________________________ 0071. . 0 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-8, column A)_______________________ 1754. . 0 2.a
b. Available-for-sale securities (from Schedule RC-8, column D)_____________________ 1773. . 3,000 2.b
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold_______________________________________________________________ 0276. . 0 3.a
b. Securities purchased under agreements to resell__________________________________ 0277. . 0 3.b
4. Loans and lease financing receivables:
RCON
a. Loans and leases, net of unearned income ----
(from Schedule RC-C)______________________________ 2122. . 0 . . . . . . 4.a
b. LESS: Allowance for loan and lease losses_________ 3125. . 0 . . . . . . 4.b
c. LESS: Allocated transfer risk reserve_____________ 3128. . 0 . . . . . . 4.c
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c)______________________________ 2125. . 0 4.d
5. Trading assets______________________________________________________________________ 3545. . 0 5.
6. Premises and fixed assets (including capitalized leases)____________________________ 2145. . 0 6.
7. Other real estate owned (from Schedule RC-M)________________________________________ 2150. . 0 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M)______________________________________________________________________ 2130. . 0 8.
9. Customers' liability to this bank on acceptances outstanding________________________ 2155. . 0 9.
10. Intangible assets (from Schedule RC-M)______________________________________________ 2143. . 27,568 10.
11. Other assets (from Schedule RC-F)___________________________________________________ 2160. . 401 11.
12. Total assets (sum of items 7 through 11)____________________________________________ 2170. . 100,248 12.
- ---------
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certification of deposits not held for trading.
<PAGE>
First Trust of Illinois, National A Call Date: 12/31/95 Page RC -2
600 North Michigan Avenue Vendor ID: D CERT: 34094
Chicago, IL 60611 10
Transit Number: 09600069
Schedule RC - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of ----
columns A and C from Schedule RC-E)_______________________________________2200. . 0 13.a
RCON
----
(1) Noninterest-bearing (1)__________________________6631. . 0 . . . . . . 13.a.1
(2) Interest-bearing_________________________________6636. . 0 . . . . . . 13.a.2
b. In foreign offices, Edge and agreement subsidiaries, and IBFs_____________ . . . . . .
(1) Noninterest-bearing___________________________________________________ . . . . . .
(2) Interest-bearing______________________________________________________ . . . . . .
14. Federal funds purchased and securities sold under agreements to repurchase:
a. Federal funds purchased___________________________________________________0278. . 0 14.a
b. Securities sold under agreements to repurchase____________________________0279. . 0 14.b
15. a. Demand notes issued to U.S. Treasury______________________________________2840. . 0 15.a
b. Trading liabilities_______________________________________________________3548. . 0 15.b
16. Other borrowed money:
a. With original maturity of one year or less________________________________2332. . 0 16.a
b. With original maturity of more than one year______________________________2333. . 0 16.b
17. Mortgage indebtedness and obligations under capitalized leases_______________2910. . 0 17.
18. Bank's liability on acceptances executed and outstanding_____________________2920. . 0 18.
19. Subordinated notes and debentures____________________________________________3200. . 0 19.
20. Other liabilities (from Schedule RC-G)_______________________________________2930. . 228 20.
21. Total liabilities (sum of items 13 through 20)_______________________________2948. . 228 21.
22. Limited-life preferred stock and related surplus_____________________________3282. . 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus________________________________3838. . 0 23.
24. Common stock_________________________________________________________________3230. . 1,000 24.
25. Surplus (exclude all surplus related to preferred stock)_____________________3839. . 99,000 25.
26. a. Undivided profits and capital reserves____________________________________3632. . 20 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities____8434. . 0 26.b
27. Cumulative foreign currency translation adjustments__________________________ . . . . . .
28. Total equity capital (sum of items 23 through 27)____________________________3210. . 100,020 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of
items 21, 22, and 28_________________________________________________________3300. . 100,248 29.
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 1994________6724. . N/A 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 on 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
</TABLE>
- -------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
