SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
January 14, 1997
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Date of Report (Date of Earliest Event Reported)
TRIBUNE COMPANY
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
1-8572 36-1880355
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(Commission File Number) (IRS Employer Identification No.)
435 North Michigan Avenue, Chicago, Illinois 60611
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (312) 222-9100
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Item 5. Other Events
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(1) Registration Statement on Form S-3
On December 27, 1996, Tribune Company (the "Company" or the "Registrant")
filed with the Securities and Exchange Commission ("SEC") a Registration
Statement on Form S-3 (File No. 333-18921) (the "Registration Statement")
relating to the issuance by the Company from time to time in one or more series
of its unsecured debt securities and warrants to purchase such debt securities
with an aggregate initial offering price of up to $500,000,000. The Registration
Statement was declared effective by the SEC on January 9, 1997. The Company
filed with the SEC a Prospectus Supplement on January 14, 1997 relating to the
offer and sale of up to $500,000,000 aggregate initial offering price of the
Company's Medium-Term Notes, Series E (the "Notes"). The Notes are being issued
under an Indenture dated January 1, 1997 (the "Indenture") between the Company
and Bank of Montreal Trust Company, as trustee. On January 14, 1997, the Company
entered into a Selling Agency Agreement (the "Agency Agreement") with Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citicorp
Securities, Inc., J.P. Morgan Securities Inc. and Salomon Brothers Inc. relating
to the offer and sale by the Company from time to time of the Notes. Copies of
the Agency Agreement and the Indenture (forms of which documents were filed as
exhibits to the Registration Statement) are filed as exhibits hereto and are
incorporated herein.
(2) Stock Split
On December 10, 1996, Tribune Company announced that its Board of
Directors had declared a two-for-one stock split (the "Stock Split") to be
effected by a 100% stock dividend to be distributed on January 15, 1997 (the
"Distribution Date") to stockholders of record of the Registrant's Common Stock,
without par value ("Common Stock"), as of the close of business on December 27,
1996. In connection therewith, on the Distribution Date, the Registrant issued
an additional 97,753,122 shares of Common Stock thereby increasing its issued
shares to 163,543,316 (including a total of 40,048,382 treasury shares).
In accordance with the Rights Agreement dated as of December 22, 1987, as
amended (the "Rights Agreement"), between the Registrant and The First National
Bank of Chicago, as Rights Agent, each share of Common Stock is accompanied by
one Preferred Stock Purchase Right (a "Right").
Prior to the Distribution Date, each Right, after becoming exercisable and
until its expiration or redemption, entitled the holder to purchase from
the Registrant one one-hundredth (1/100) of a share of the Registrant's Series A
Junior Participating Preferred Stock ("Series A Preferred Shares") at an
exercise price of $150.00 per Right. The redemption price was $.01 per Right.
As a result of the Stock Split and pursuant to Section 11(n) of the Rights
Agreement, effective as of the Distribution Date, each Right, after it becomes
exercisable and until such time as it expires or is redeemed, will entitle the
holder to purchase from the Registrant one two-hundredth (1/200) of a share of
Series A Preferred Shares at an exercise price of $75.00 per Right. Pursuant to
Section 23(a) of the Rights Agreement, effective as of the Distribution Date,
the redemption price will be $.005 per Right.
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As a result of the Stock Split and pursuant to the Certificate of
Designations establishing the Series A Preferred Shares, effective as of the
Distribution Date: (i) each Series A Preferred Share will be entitled to
quarterly dividends equal to the greater of $1.00 or 200 times the aggregate per
share amount of all dividends declared on the Common Stock during the quarter,
(ii) each Series A Preferred Share will be entitled to 200 votes on all matters
submitted to a vote of the Registrant's stockholders and (iii) each Series A
Preferred Share will be entitled to receive payment upon any liquidation,
dissolution or winding up of the Registrant, the greater of $1.00 or 200 times
the amount to be distributed per share to holders of shares of Common Stock.
The Rights Agreement, including the form of Certificate of Designations
establishing the Series A Preferred Shares which is Exhibit A thereto, was filed
as Exhibit 1 to the Registrant's Registration Statement on Form 8-A filed with
the Securities and Exchange Commission on December 31, 1987. Reference is made
to the Rights Agreement for a more complete description of the terms of the
Rights.
Item 7. Financial Statements and Exhibits
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(c) Exhibits
1 Selling Agency Agreement dated January 14, 1997 among the Company
and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Citicorp Securities, Inc., J.P. Morgan Securities
Inc. and Salomon Brothers Inc.
4 Indenture dated January 1, 1997 between Tribune Company and
Bank of Montreal Trust Company, as trustee.
99.1 Press release issued by Tribune Company on December 11, 1996
announcing the stock split.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TRIBUNE COMPANY
(Registrant)
Date: January 17, 1997 /s/ R. Mark Mallory
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R. Mark Mallory
Vice President and Controller
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EXHIBIT INDEX
Exhibit No. Exhibit Description
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1 Selling Agency Agreement dated January 14, 1997 among the
Company and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Citicorp Securities, Inc., J.P.
Morgan Securities Inc. and Salomon Brothers Inc.
4 Indenture dated January 1, 1997 between Tribune Company
and Bank of Montreal Trust Company, as trustee.
99.1 Press release issued by Tribune Company on December 11, 1996
announcing the stock split.
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$500,000,000
TRIBUNE COMPANY
Medium-Term Notes, Series E
Due Nine Months or More from Date of Issue
Selling Agency Agreement
Chicago, Illinois
January 14, 1997
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
World Financial Center - North Tower
New York, New York 10281
Citicorp Securities, Inc.
399 Park Avenue
New York, New York 10043
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
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 E Due Nine Months or More from Date of Issue (the
"Notes"). The Notes will be issued under an indenture dated as of January 1,
1997 between the Company and Bank of Montreal Trust Company, as 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
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of this Agreement, the term "Agent" shall refer to any of you acting solely in
the capacity as agent for 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) at the time the
Registration Statement became effective and 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 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, at the time
the Registration Statement became effective and 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
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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;
(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
enforceable in accordance with 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
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
U.S. generally accepted accounting principles applied on a
consistent basis; the accountants who certified the financial
statements included or incorporated by reference in the
Prospectus are independent public accountants within the
meaning of the Act and the rules and regulations of the
Commission thereunder;
(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
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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) the Notes are rated "A3" by Moody's Investors
Services, Inc. and "A" by Standard & Poor's Corporation or
such other ratings as the Company shall have notified the
Agents pursuant to Section 4(m).
(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 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;
(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 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;
(x) The Company is not required to be registered
under the Investment Company Act of 1940, as amended;
(xi) The Notes, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the
Indenture, will be excluded or exempted under the provisions
of the Commodity Exchange Act.
(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.
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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.
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
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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 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.
(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
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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).
(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 Sections
1(b) and (c).
(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)
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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, 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
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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.
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 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;
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<PAGE>
(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 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;
(x) no holders of outstanding securities of the Company
have rights to the registration of such securities under the
Registration Statement; and
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<PAGE>
(xi) such counsel confirms the statements contained in the
Prospectus under the caption "United States Federal Income Tax
Consequences" as to the principal anticipated Federal income
tax consequences of the ownership of the Notes for the purposes
and to the extent set forth therein.
Such counsel may limit its opinion to matters involving
the application of the laws of the State of Illinois, the State
of New York 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:
(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
audited 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;
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<PAGE>
(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
(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, there was any change in
the common stock (the sum of common stock and paid in
capital net of treasury 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
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.
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<PAGE>
(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 financial 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,
if applicable, 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.
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:
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(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.
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, in the Registration
Statement or in any amendment thereof, or in the 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 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. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(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
14
<PAGE>
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.
(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
15
<PAGE>
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 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
16
<PAGE>
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.
17
<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 each other countersigning party.
Very truly yours,
TRIBUNE COMPANY
By: David J. Granat
-----------------
Title: Vice President/Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date hereof.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: Scott G. Primrose
-------------------
Title: Authorized Signatory
CITICORP SECURITIES, INC.
By: D.J. Donahue
--------------
Title: Vice President
J.P. MORGAN SECURITIES INC.
By: Maria Siamek
--------------
Title: Vice President
SALOMON BROTHERS INC
By: Martha D. Bailey
------------------
Title: Vice President
18
<PAGE>
SCHEDULE I
Selling Agency Agreement dated January 14, 1997
Registration Statement No. 333-18921
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 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.
Notices to Citicorp Securities, Inc. shall be directed to it at 399 Park
Avenue, 7th Floor, New York, New York 10043, Attention of Manager, Capital
Markets.
Notices to J.P. Morgan Securities Inc. shall be directed to it at 60 Wall
Street, New York, New York 10260, Attention of Medium-Term Note Desk.
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.
I-1
<PAGE>
EXHIBIT A
---------
TRIBUNE COMPANY
ADMINISTRATIVE PROCEDURES
for Fixed Rate and Floating Rate Medium-Term Notes
(Dated as of January 14, 1997)
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, Citicorp Securities, Inc., J.P. Morgan
Securities Inc. and Salomon Brothers Inc (each, an "Agent" and, collectively,
the "Agents") pursuant to a Selling Agency Agreement, dated January 14, 1997
(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 January 1, 1997, as amended, supplemented or modified
from time to time (the "Indenture"), between the Company and Bank of Montreal
Trust Company, as 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".
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.
B-1
<PAGE>
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 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.
B-2
<PAGE>
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,
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
B-3
<PAGE>
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 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, regulation 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 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
B-4
<PAGE>
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;
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
B-5
<PAGE>
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.
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 Citicorp
Securities, Inc., to: Peter
Apostolicas, MTN Manager, 399 Park
Avenue, New York, New York 10043,
(212) 291-3081, telecopier: (212)
291-3910; if to J.P. Morgan
Securities Inc., to: 60 Wall Street,
3rd Floor, New York, New York 10260,
Attention: Medium-Term Note Desk -
Dan Benton, (212) 648- 0591,
telecopier: (212) 648-5907; 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,
B-6
<PAGE>
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 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
B-7
<PAGE>
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 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; Citicorp
Securities, Inc., Manager, Capital
Markets, 399 Pake Avenue, 7th Floor,
New York, New York 10043, Attention:
Kerry Kearney, (212) 291-3481;
telecopier (212) 291-3910; J.P.
Morgan Securities Inc., 60 Wall
Street, 3rd Floor, New York,
New York, 10260, Attention:
Medium-Term Note Desk - Dan Benton,
(212) 648-0591, telecopier: (212)
648-0507; 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
B-8
<PAGE>
purchaser or its agent and (b) the
delivery of Notes to an investor or
other purchaser or its agent.
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 January 14, 1997,
and a Certificate Agreement, dated October 18, 1989 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.
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.
B-9
<PAGE>
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 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
B-10
<PAGE>
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
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
B-11
<PAGE>
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.
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 Participants. 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 such
date. The Company will make such
payment on such Global Notes to an
account specified by the Trustee.
Upon
B-12
<PAGE>
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.
(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.
B-13
<PAGE>
(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.
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
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
B-14
<PAGE>
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
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'a
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
B-15
<PAGE>
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 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 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-16
<PAGE>
B 12:00 noon on the trade date
or within one hour following
the trade
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 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
B-17
<PAGE>
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 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.
B-18
<PAGE>
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.
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.
B-19
<PAGE>
(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).
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-20
<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 Citicorp Securities,
Inc., 20 Exchange Place, Level C,
Window 2, New York, New York 10043,
Attention: Anton Kincaid, (212)
825-6732, telecopier (212) 825-6723;
if to J.P. Morgan Securities Inc.,
c/o National Securities Clearing
Corporation, 55 Water Street, Plaza
Level, New York, New York 10005,
Attention: Bill Davis (212)
648- 4105, telecopier (212)
648-5098; 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 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
B-21
<PAGE>
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
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. 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-22
<PAGE>
EXHIBIT B
TRIBUNE COMPANY
[Description of Notes]
TERMS AGREEMENT
[ ], 199_
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 January 14, 1997, among Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citicorp Securities, Inc.,
J.P. Morgan Securities Inc. 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
and Payment Therefor:
Method of Payment:
B-1
<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: _______________________________
Title:
Accepted:
TRIBUNE COMPANY
By: _______________________________
Title:
B-2
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TRIBUNE COMPANY,
Issuer
and
BANK OF MONTREAL TRUST COMPANY,
Trustee
-----------------------------
INDENTURE
Dated as of January 1, 1997
------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture dated as of January 1, 1997 between Tribune Company and Bank of
Montreal Trust Company
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
ss.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
ss.311 (a) ................................... 6.13(a)
(b) ................................... 6.13(b)
(b)(2) ................................... 7.03(a)(2)
................................... 7.03(b)
ss.312 (a) ................................... 7.01, 7.02(a)
(b) ................................... 7.02(b)
(c) ................................... 7.02(b)
ss.313 (a) ................................... 7.03(a)
(b) ................................... 7.03(b)
(c) ................................... 7.03(a), 7.03(b)
(d) ................................... 7.03(c)
ss.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
ss.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
ss.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
ss.317 (a)(1) ................................... 5.03
(a)(2) ................................... 5.04
(b) ................................... 10.03
ss.318 (a) ................................... 1.07
- --------------------
NOTE: This reconciliation and tie shall not, for any purpose,
deemed to be a part of the Indenture.
-i-
<PAGE>
TABLE OF CONTENTS
Page
----
RECITALS OF THE COMPANY.......................................................1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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
- --------------------
NOTE: This table of contents shall not, for any purpose,
deemed to be a part of the Indenture.
-ii-
<PAGE>
Page
----
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
-iii-
<PAGE>
Page
----
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
-iv-
<PAGE>
Page
----
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
-v-
<PAGE>
Page
----
SECTION 10.04. Corporate Existence...........................................73
SECTION 10.05. Maintenance of Properties.....................................73
SECTION 10.06. Payment of Taxes and Other Claims.............................73
SECTION 10.07. Limitation on Indebtedness Secured
by a Mortgage..............................................73
SECTION 10.08. Limitation on Sale and Lease-Back.............................76
SECTION 10.09. Statement as to Compliance....................................77
SECTION 10.10. Waiver of Certain Covenants...................................77
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article......................................77
SECTION 11.02. Election to Redeem; Notice to Trustee.........................78
SECTION 11.03. Selection by Trustee of Securities
to Be Redeemed.............................................78
SECTION 11.04. Notice of Redemption..........................................78
SECTION 11.05. Deposit of Redemption Price...................................79
SECTION 11.06. Securities Payable on Redemption Date.........................79
SECTION 11.07. Securities Redeemed in Part...................................80
ARTICLE XII
SINKING FUNDS
SECTION 12.01. Applicability of Article......................................80
SECTION 12.02. Satisfaction of Sinking Fund Payments
with Securities............................................80
SECTION 12.03. Redemption of Securities for Sinking Fund.....................81
ARTICLE XIII
DEFEASANCE
SECTION 13.01. Applicability of Article......................................81
SECTION 13.02. Defeasance upon Deposit of Moneys or
U.S. Government Obligations................................82
SECTION 13.03. Deposited Moneys and U.S. Government
Obligations to Be Held in Trust............................83
SECTION 13.04. Repayment to Company..........................................84
SIGNATURES AND SEALS.........................................................85
ACKNOWLEDGMENTS..............................................................85
-vi-
<PAGE>
INDENTURE, dated as of January 1, 1997 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 Bank of Montreal Trust Company, a trust
company duly organized and existing under the laws of the State of New York,
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
<PAGE>
"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 or The City of New York, State of New York, are authorized or
obligated by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
-2-
<PAGE>
"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 New York, New York, 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 77 Water Street, New York, New York
10005.
"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.
-3-
<PAGE>
"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.
"ixed 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 Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemp tion 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, partner ship, 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
Directors of 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 his
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 investiga tion 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 instru ments. 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. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provisions shall be deemed to apply to this Indenture as so modified
or excluded, as the case may be.
SECTION 1.08. 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.
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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
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
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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 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
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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 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 ineligi bility, 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
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both, would constitute an Event of Default with respect to the Securities of
such series represented by such Global Security. In such event the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of individual Securities of such series in exchange in whole or in
part for such Global Security, will authenticate and deliver individual
Securities of such series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such Global Security
or Securities representing such series in exchange for such Global Securities or
Securities.
(iv) If specified by the Company pursuant to Section 3.01 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
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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 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:
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(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 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;
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(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 5.02
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
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Security or Securities; the terms and conditions, if any, upon which
such Global Security or Securities may be exchanged in whole or in part
for other individual Securities or for other Global Securities; and the
Depository for such Global Security or Securities;
(17) whether the Securities of the series are to be issuable in
definitive form (whether upon original issuance or upon exchange of a
temporary Security of the series) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, and, if so, the form
and terms of such certificates, documents or conditions; 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.
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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 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
supple mental indenture have been duly authorized by all necessary corporate
action of the Company, such
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supplemental indenture has been duly executed and delivered by the Company
and, assuming due authoriza tion, execution and delivery by the Trustee, is
a valid and binding obligation enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and subject, as to enforce
ability, to general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law);
(5) the execution and delivery of such Securities have been duly
authorized by all necessary corporate action of the Company and such
Securities have been duly executed by the Company and, assuming due
authentication by the Trustee and delivery by the Company, are the valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, entitled to the benefit of the Indenture,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law); and
(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
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appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
SECTION 3.04. 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.
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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
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 registra tion 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
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Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon the Company's request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
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
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<PAGE>
outstanding Securities are registered at the close of business on a subsequent
record date established by notice given by mail by and on behalf of the Company
to the Holders of Securities not less than fifteen days preceding such
subsequent record date, such record date to be not less than ten days preceding
the date of payment of such defaulted interest. The term "record date" as used
in this Section 3.07 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.
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<PAGE>
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.
SECTION 3.11. Currency of Payments in Respect of Securities.
---------------------------------------------
(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 determina tion 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
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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,
notwith standing any payment in any other Currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount of the
Designated Currency that the Holder receiving such payment may, in accordance
with normal banking procedures, purchase with the sum paid in such other
Currency (after any premiums and cost of exchange) on the Business Day in the
country of issue of the Designated Currency immediately following the day on
which such Holder receives such payment. If the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall, and any 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
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<PAGE>
(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) 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 here under, 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 Authenticat ing 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.
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<PAGE>
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 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
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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 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
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<PAGE>
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.
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
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(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
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.
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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;
(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.
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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 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
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thereof in any proceeding relating thereto, and any such proceed ing 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.
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;
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(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
(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
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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.
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 acqui escence 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
pace 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.
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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.
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
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the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the exercise of any power
herein granted to the Trustee, but will suffer and permit the exercise of every
such power as though no such law had been enacted.
SECTION 5.16. Duty to Accelerate.
------------------
The Trustee shall be under no duty to accelerate the debt hereunder or
to institute any proceedings unless it knows or in the exercise of reasonable
diligence should have known of the existence of an event of default hereunder.
ARTICLE VI
THE TRUSTEE
SECTION 6.01. 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 of
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.
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(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
the Holders of a majority in principal amount of the Outstanding Securities
of any series pursuant to the provisions of Section 5.12 relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or other wise 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 reason able 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
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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.
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 resolu tion, 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) before the Trustee acts or refrains from acting, the Trustee may
consult with counsel and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and
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liabilities which might be incurred by it in compliance with such request
or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such matters of fact as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) except for (i) a default under Sections 5.01 (1), (2) or (3) hereof
or (ii) any other event of which the Trustee has "actual knowledge" and
which event, with the giving of notice or the passage of time or both,
would constitute an Event of Default under this Indenture, the Trustee
shall not be deemed to have notice of any default or Event of Default with
respect to Securities of any series at the time Outstanding unless
specifically notified in writing of such event by the Company or the
Holders of not less than 25% in principal amount of the Outstanding
Securities of that series; as used herein, the term "actual knowledge"
means the actual fact or state of knowing, without any duty to make any
investigation with regard thereto.
SECTION 6.04. 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.
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<PAGE>
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 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 disburse ments 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
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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 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 the 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
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(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 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
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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 as 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
(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 conser vator, 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 testa mentary 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 and 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
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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.
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
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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.
(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,
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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.
(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
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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.
(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 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
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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 (with its direct parent) 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.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08(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.
(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
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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, 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
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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.
(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 corpora tion 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
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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
(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
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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 sub stitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such 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 applic able 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
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reorganization pursuant to the Federal Bankruptcy Act or applic able 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 bank ruptcy 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 considera tion 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 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 resigna tion 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.
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(b) There shall be excluded from the operation of Subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebted ness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, accep tances 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
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indenture and as to which securities the Trustee is also trustee, (ii)
which contains provisions substan tially 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
(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 Out standing 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
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Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having (together with its direct parent) a combined capital and surplus of not
less than $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 consoli dation 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 Authen ticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authen ticating 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.
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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
(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 regard ing 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;
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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 communi cation 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
(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 appli cants 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
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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 com mencing 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 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
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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.
(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
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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 Com mission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); or, if the Company
is not required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the 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.
----------------------------------------------------
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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 supple mental 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 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, trans fer 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 relieved of
all obligations and covenants under this Indenture and the Securities.
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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
(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
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(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 supple ment 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
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the due date of the principal of, or any installment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon
redemption thereof, or reduce the amount of the principal of any Security
that would be due and payable upon a declaration of the maturity thereof
pursuant to Section 5.02, 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
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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.
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 supple mental 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.
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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 pro vided 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 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
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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:
(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
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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.
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 Sub sidiary 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
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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 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,
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(d) Mortgages on any property hereafter acquired by the Company or any
Restricted Subsidiary, contem poraneously 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 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 prin ciples 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
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in the ordinary course of business of any such indebtedness);
(2) "Mortgage" means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other
similar encumbrance;
(3) "Consolidated Net Tangible Assets" means total consolidated assets
of the Company and its 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) invest ments 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 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
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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.
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.
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SECTION 10.10. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 10.04 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 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
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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;
(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.
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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.
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.
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<PAGE>
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 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
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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 pay ment 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.
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
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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 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.
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"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 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.
-----------------------
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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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<PAGE>
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]
By: /s/ David J. Granat
--------------------
Name: David J. Granat
Title:
Attest:
/s/ Crane Kenney
- ----------------
Name: Crane Kenney
Title:
BANK OF MONTREAL TRUST
COMPANY, Trustee
[Seal]
By: /s/ Amy Roberts
---------------
Name: Amy Roberts
Title: Asst. Vice President
Attest:
/s/ Maryann Luisi
- -----------------
Name: Maryann Luisi
Title: Asst. Secretary
-86-
Exhibit 99.1
TRIBUNE
Press Release
TRIBUNE TO SPLIT COMMON STOCK 2 FOR 1;
SHARES DISTRIBUTED JAN. 15 TO HOLDERS OF RECORD DEC. 27
CHICAGO, Wed., Dec. 11, 1996 - Tribune Company's (NYSE: TRB) board of directors
approved a two-for-one split of common stock during a regular meeting here
today. Shares will be distributed Jan. 15, 1997 as a 100 percent stock dividend
to holders of record at the end of business on Dec. 27, 1996.
"Tribune has great momentum and excellent prospects for the future, which have
been reflected in the steady increase in our stock value. This split will put
the share price of TRB more in line with our peers and with most public
companies," John W. Madigan, chairman, president and CEO said. "Tribune's cash
flow should top $600 million this year. The pending acquisition of Renaissance
stations by our television group and the recent addition of exciting new
education businesses give us balance in content, distribution and revenue. We
are a company with a rich tradition that is changing dramatically to meet future
needs for information and entertainment in a digital age, creating shareholder
value as we grow."
Tribune's most recent split, also two for one, occurred in May 1987. Tribune
became a public company in 1983. There were about 61 million common shares
outstanding at the end of the third quarter 1996.
Tribune is a leading information and entertainment company. Tribune owns and
operates 10 television and five radio stations, publishes four daily newspapers,
produces and syndicates programming and information and provides educational
products and services for the school and consumer markets. In July, Tribune
agreed to acquire Renaissance Communications Corp. (RRR), a publicly traded
company owning six television stations.
Financial data and general information may be found on Tribune's World Wide Web
site: http://www.tribune.com. Earnings and other news releases also can be
accessed by calling 1-800-757-1694.
MEDIA CONTACT: INVESTOR CONTACT:
Robert D. Carr Ruthellyn Musil
312/222-3763 (Office) 312/222-3787 (Office)
630/545-0746 (Home) 847/559-0852 (Home)
312/222-1573 (Fax) 312/222-1573 (Fax)
[email protected] [email protected]
1
