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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 5, 1999
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TRIBUNE COMPANY
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(Exact name of registrant as specified in its charter)
DELAWARE 1-8572 36-1880355
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) 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
NOT APPLICABLE
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
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Exhibits are filed herewith in connection with the Registration Statement
on Form S-3 (File No. 333-74961) originally filed March 24, 1999 by Tribune
Company (the "Company").
On April 5, 1999, the Company filed a preliminary prospectus supplement
dated April 2, 1999 pursuant to Rule 424(b) (the "Rule") of the Securities Act
of 1933, as amended, relating to Exchangeable Subordinated Debentures due 2029
(the "PHONES"), and executed the Indenture (the "Indenture") dated as of April
1, 1999 between the Company and Bank of Montreal Trust Company, as Trustee,
under which the PHONES are being issued.
On April 7, 1999, the Company entered into an Underwriting Agreement (the
"Underwriting Agreement") with certain underwriters relating to the PHONES.
On April 9, 1999, the Company filed a final prospectus supplement dated
April 7, 1999 (the "Prospectus Supplement") pursuant to the Rule, relating to
the PHONES.
The Indenture and the Underwriting Agreement, each of which is an exhibit
to the Registration Statement, are being filed as exhibits hereto. In addition,
a tax opinion, which also is an exhibit to the Registration Statement, relating
to certain disclosures contained in the Prospectus Supplement, is being filed as
an exhibit hereto.
Item 7. Financial Statements and Exhibits.
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The Company is filing herewith the following exhibits:
(c) Exhibits.
The exhibits accompanying this report are listed in the accompanying
Exhibit Index.
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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, thereto duly authorized.
TRIBUNE COMPANY
Date: April 9, 1999 By: /s/ Donald C. Grenesko
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Name: Donald C. Grenesko
Title: Senior Vice President/
Finance and Administration
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EXHIBIT INDEX
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The following exhibits are filed herewith and are exhibits to the
Company's Registration Statement on Form S-3, Registration No. 333-74961, as
noted below.
Registration No.
333-74961
Exhibit No. Exhibit No. Exhibit
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1 1.1 Underwriting Agreement dated April 7,
1999, among the Company and certain
underwriters named therein
4 4.2 Indenture dated as of April 1, 1999,
between the Company and Bank of
Montreal Trust Company, as Trustee.
8 8 Opinion of Sidley & Austin (relating to
tax matters).
23 23.3 Consent of Sidley & Austin (included in
Exhibit 8).
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TRIBUNE COMPANY
Underwriting Agreement
New York, New York
April 7, 1999
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
World Financial Center - North Tower
New York, New York 10281-1209
Dear Sirs:
Tribune Company, a Delaware corporation (the "Company"), proposes to sell
to the underwriters named in Schedule II hereto (the "Underwriters"), for whom
you are acting as representative (the "Representative"), the number of its
securities identified in Schedule I hereto (the "Initial Securities"), to be
issued under an indenture, dated as of April 1, 1999 (the "Indenture"), between
the Company and Bank of Montreal Trust Company, as trustee (the "Trustee"). As
described in Section 2(b) hereof, the Company has granted the Underwriters the
option to purchase all or any part of an additional amount of securities (the
"Option Securities") identified in Schedule I hereto solely to cover over-
allotments, if any. The Initial Securities and the Option Securities are
collectively referred to herein as the "Securities."
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter 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 in Schedule I
hereto), which has become effective, for the registration under the Act of
the Securities. Such registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the
Act and complies in all other material respects with said Rule. The Company
proposes to file with the Commission pursuant to Rule 424 under the Act a
supplement to the form of prospectus included in such registration
statement relating to the Securities and the plan of distribution thereof
and has previously advised you of all further information (financial and
other) with respect to the Company to be set forth therein. Such
registration statement, including the exhibits thereto, as amended at the
date of this Agreement is hereinafter called the "Registration Statement";
such prospectus in the form in which it appears in the Registration
Statement is hereinafter called the "Basic Prospectus"; and such
supplemented form of prospectus, in the form in which it shall be filed
with the Commission pursuant to Rule 424 (including the Basic Prospectus as
so supplemented) is hereinafter called the "Final
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Prospectus". Any preliminary form of the Final Prospectus, which has
heretofore been filed pursuant to Rule 424 is hereinafter called the
"Preliminary Final Prospectus." Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date of this Agreement, or the issue date
of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference.
(b)(i) As of the date hereof, (ii) when the Final Prospectus is first
filed or transmitted for filing pursuant to Rule 424 under the Act, (iii)
when, prior to the Closing Date (as hereinafter defined in Section 3), any
amendment to the Registration Statement becomes effective (including the
filing of any document incorporated by reference in the Registration
Statement), (iv) when any supplement to the Final Prospectus is filed with
the Commission and (v) at the Closing Date: (x) the Registration Statement,
as amended as of any such time, and the Final Prospectus, as amended or
supplemented as of any such time, and the Indenture will comply in all
material respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
Exchange Act and the respective rules thereunder, (y) the Registration
Statement, as amended as of any such time, will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading and (z) the Final Prospectus, as amended or supplemented as of
any such time, will not include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to (x) that part of the Registration Statement which shall
constitute the Statements of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee or (y) any information contained in or omitted
from the Registration Statement or the Final Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representative specifically for use in connection
with the preparation of the Registration Statement or the Final Prospectus.
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(c) As of the date hereof and at the Closing Date:
(i) each of the Company and Chicago Tribune Company, Orlando
Sentinel Communications Company, Sun-Sentinel Company and Tribune
Broadcasting Company (individually, a "Designated Subsidiary" and
collectively, the "Designated Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business as described in the Basic
Prospectus (as of the date hereof) or the Final Prospectus (as of the
Closing Date), and is duly qualified or licensed to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction where the character of the properties owned or leased or
the nature of the activities conducted by such corporations,
respectively, makes such qualifications or licensing necessary, and
where the failure to be so qualified or licensed might materially
adversely affect the financial condition, assets, operations or
prospects of the Company and its subsidiaries considered as one
enterprise;
(ii) all the outstanding shares of capital stock of each
Designated Subsidiary have been duly and validly authorized and issued
and are fully paid and non-assessable, and, except as otherwise set
forth in the Basic Prospectus (as of the date hereof) or the Final
Prospectus (as of the Closing Date), all outstanding shares of capital
stock of the Designated Subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any
perfected security interest and any other security interests, claims,
liens or encumbrances;
(iii) the Indenture has been duly authorized, executed and
delivered and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms (except
to the extent enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws of general applicability
relating to or affecting the enforcement of creditors' rights and by
the effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law));
the Indenture has been duly qualified under the Trust Indenture Act;
and the Securities have been duly authorized and, when executed by the
Company and authenticated by the Trustee in accordance with the
provisions of the Indenture and delivered to and paid for by the
purchasers thereof, will constitute legal, valid and binding
obligations of the Company, except to the extent enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws of general applicability relating to or affecting the enforcement
of creditor's rights and by the effect of general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law) and will be entitled to the benefits of the
Indenture;
(iv) the financial statements of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Basic Prospectus (as of the
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date hereof) or the Final Prospectus (as of the Closing Date) present
fairly the financial position of the Company and such consolidated
subsidiaries as at the dates indicated and the results of their
operations for the periods specified; except as stated therein, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis;
(v) to the best knowledge of the Company, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any of the Designated Subsidiaries of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Basic Prospectus (as of the date hereof) or the Final
Prospectus (as of the Closing Date), and there is no franchise,
contract or other document of a character required to be described in
the Registration Statement or Basic Prospectus (as of the date hereof)
or the Final Prospectus (as of the Closing Date), or to be filed as an
exhibit, which is not described or filed as required;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) no consent, approval, authorization or order of any court
or governmental agency or body, domestic or foreign, is required for
the consummation of the transactions contemplated herein except such
as have been obtained under the Act and the Trust Indenture Act and
such as may be obtained under the blue sky laws of any jurisdiction in
connection with the sale of the Securities as contemplated by this
Agreement and such other approvals as have been obtained; and
(viii) none of the execution of the Indenture, the issuance and
sale of the Securities, the consummation of any other of the
transactions herein contemplated or the fulfillment of the terms
hereof will conflict with, result in a breach of, or constitute a
default under the charter or by-laws of the Company or the terms of
any indenture or other agreement or instrument to which the Company or
any of the Designated Subsidiaries is a party or bound, or any order,
decree, rule or regulation known to the Company to be applicable to
the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator, domestic or
foreign, having jurisdiction over the Company or any of its
subsidiaries.
(d) The Company confirms as of the date hereof, and at the Closing
Date, that the Company is in compliance with all provisions of Section 1 of
Laws of Florida, Chapter 92-198, An Act Relating to Disclosure of Doing
Business with Cuba, and the Company further agrees that if it commences
engaging in business with the government of Cuba or with any person or
affiliate located in Cuba after the date the Registration Statement becomes
or has become effective with the Commission or with the Florida Department
of Banking and Finance (the "Department"), whichever date is later, or if
the information reported in the Basic, Preliminary Final or the Final
Prospectus, if any, concerning the Company's business
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with Cuba or with any person or affiliate located in Cuba changes in any
material way, the Company will provide the Department notice of such
business or change, as appropriate, in a form acceptable to the Department.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the number of Initial Securities set forth opposite such
Underwriter's name in Schedule II hereto.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Company hereby grants an option to the Underwriters, to purchase from
it any or all of the Option Securities at the same price as is to be paid
by the Underwriters for the Initial Securities plus, in the case of the
Option Securities, accrued interest, if any, from the Closing Date to the
Option Closing Date (as defined below). The option hereby granted will
expire thirty (30) days after the date hereof and may be exercised in whole
or in part from time to time only for the purpose of covering over-
allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Representative to
the Company setting forth the number of Option Securities as to which the
Underwriters are then exercising the option and the time, date and place of
payment and delivery for such Option Securities. Any such time and date
(each an "Option Closing Date") shall be determined by the Representative
but shall not be later than seven (7) full business days nor earlier than
two (2) full business days after the exercise of said option, nor in any
event prior to Closing Date unless otherwise agreed upon by the
Representative and the Company.
3. Delivery and Payment. (a) Delivery of and payment for the Initial
Securities shall be made at the location, in the currency, on the date and at
the time specified in Schedule I hereto (or such later date not later than five
business days after such specified date as the Representative shall designate),
which date and time may be postponed by agreement between the Representative and
the Company as provided in Section 8 hereof (such date and time of delivery and
payment for the Initial Securities being herein called the "Closing Date"). In
addition, in the event that any or all of the Option Securities are purchased by
the Underwriters, delivery of such Option Securities and payment of the purchase
price for such Option Securities shall be made at the above-mentioned location,
on each Option Closing Date as specified in the notice from the Representative
to the Company. Delivery of the Securities shall be made to the Representative
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representative of the purchase price thereof to
or upon the order of the Company by wire transfer in immediately available (same
day) funds. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representative shall otherwise instruct.
4. Agreements. The Company agrees with the several Underwriters that:
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(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless
the Company has furnished to the Representative for its review a copy
thereof prior to filing. Subject to the foregoing sentence, the Company
will cause the Final Prospectus to be filed (or transmitted for filing)
with the Commission pursuant to Rule 424. The Company will promptly advise
the Representative (i) when the Final Prospectus shall have been filed (or
transmitted for filing) with the Commission pursuant to Rule 424, (ii) when
any amendment to the Registration Statement relating to the Securities
shall have become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment of or supplement to
the Final Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the Company furnishing to
the Representative for its review a copy thereof prior to filing, an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representative 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 the Representative and to counsel for
the Underwriters, without charge, one signed copy of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto) and
each amendment thereto which shall become effective on or prior to the
Closing Date and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of each Preliminary Final
Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Representative may reasonably request. The
Company will pay the expenses of printing all documents relating to the
offering.
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(e) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representative may
designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities, will arrange for the determination
of the legality of the Securities for purchase by institutional investors
and will pay the fee of the National Association of Securities Dealers,
Inc., if any, in connection with its review of the offering; provided,
however, that the Company shall not be required to effect or maintain any
such qualification in any jurisdiction that would result in it having to
execute or file a general consent to service of process under the laws of
such jurisdiction or to qualify to do business as a foreign corporation in
such jurisdiction.
(f) Through the 45th day after the date of this Agreement, the
Company will not, without the consent of the Representative, directly or
indirectly, offer, sell, offer to sell, grant an option for the sale of or
otherwise dispose of any of (i) the Securities, any securities of the
Company convertible into or exchangeable for the Securities or any
securities of the Company exchangeable for, convertible into or for which
the principal amount thereof or payment thereon is referenced to the price
of or dividend rate on shares of common stock of America Online, Inc., a
Delaware corporation ("AOL") or (ii) shares of common stock of AOL owned by
the Company; provided, however, that the foregoing shall not prohibit the
Company from taking any of the foregoing actions in connection with any
exchanges or redemptions of the Securities or in connection with any tender
offer or exchange offer for all or a portion of the outstanding shares of
common stock of AOL.
5. Conditions to the Obligations of the Underwriters. (a) The obligations
of the Underwriters to purchase the Initial Securities shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(i) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened; and the Final Prospectus shall have been filed or
transmitted for filing with the Commission pursuant to Rule 424 not
later than 5:00 p.m., New York City time, on the business day
following the date hereof.
(ii) The Company shall have furnished to the Representative the
opinion of Sidley & Austin, special counsel for the Company, dated the
Closing Date, to the effect that:
(A) each of the Company and the Designated Subsidiaries has
been duly incorporated and is validly existing as a corporation
in
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good standing under the laws of the jurisdiction in which it is
incorporated, with full corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus;
(B) all the outstanding shares of capital stock of each
Designated Subsidiary have been duly and validly authorized and
issued and are fully paid and non-assessable, and, to the
knowledge of such counsel, except as otherwise set forth in the
Final Prospectus, all outstanding shares of capital stock of each
Designated Subsidiary are owned by the Company, either directly
or through wholly owned subsidiaries, and are free and clear of
any perfected security interests, claims, liens or encumbrances;
(C) the Securities and the Indenture conform in all
material respects to the description thereof contained in the
Final Prospectus; the holders of outstanding shares of capital
stock of the Company do not have preemptive rights to subscribe
for the Securities under the Company's Certificate of
Incorporation, By-laws or the General Corporation Law of the
State of Delaware;
(D) 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 creditors' rights and by the effect of general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law); the Indenture has been duly
qualified under the Trust Indenture Act; and the Securities have
been duly authorized, executed and delivered by the Company (and
assuming due authentication by the Trustee in accordance with the
provisions of the Indenture) will constitute legal, valid and
binding obligations of the Company, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws of general applicability relating to or
affecting the enforcement of creditors' rights and 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;
(E) 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
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the Company or any of its Designated Subsidiaries of a character
required to be disclosed in the Registration Statement which is
not disclosed in the Final Prospectus as so required, and there
is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit to the Registration
Statement, which is not described or filed as required; and the
statements included or incorporated in the Final Prospectus with
respect to any such action, suit, proceeding, franchise, contract
or other document fairly summarize the matters required to be
disclosed or described;
(F) the Registration Statement and any post-effective
amendments thereto have become effective under the Act; to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement, as amended, has been
issued, no proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final Prospectus and
each amendment thereof or supplement thereto as of their
respective effective or issue dates (in each case, other than the
financial statements, financial data and supporting schedules
included or incorporated by reference therein and other than the
Trustee's Statement of Eligibility on Form T-1 (the "Form T-1"),
as to which such counsel need express no opinion) complied as to
form in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder;
and although such counsel has not independently verified, is not
passing upon and assumes no responsibility for the accuracy,
completeness or fairness of statements contained in the
Registration Statement or any amendment thereof or the Final
Prospectus or any amendment or supplement thereof and such
counsel has relied, to the extent that such counsel may properly
do so in the discharge of such counsel's professional
responsibilities as experienced securities law practitioners,
upon the judgment and statements of officers and representatives
of the Company with respect to facts necessary to the
determination of materiality, 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 and supporting schedules
included or incorporated by reference therein and other than the
Form T-1, as to which such counsel need express no belief), at
the time it became effective and at the date of this Agreement,
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that
the Final Prospectus, as amended or
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supplemented (other than the financial statements, financial data
and supporting schedules included or incorporated by reference
therein and other than the Form T-1, as to which such counsel
need express no belief), at the Closing Date, includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(G) this Agreement has been duly authorized, executed and
delivered by the Company;
(H) no consent, approval, authorization or order of any
court or governmental agency or body 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 securities or blue sky laws
of any jurisdiction in connection with the sale or offer for sale
of the Securities by the Underwriters as contemplated by this
Agreement and such other approvals (specified in such opinion) as
have been obtained;
(I) none of the execution of the Indenture, the issuance
and sale of the Securities, 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
having jurisdiction over the Company or any of its Designated
Subsidiaries; and
(J) such counsel confirms the statements contained in the
Prospectus under the caption "Certain United States Federal
Income Tax Considerations" as to the principal anticipated
Federal income tax consequences of the ownership of the
Securities 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 States of Illinois and New York, the General
Corporation Law of the State of Delaware and the federal laws of the United
States and, in rendering such opinion, may rely as to
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matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials.
(iii) The Representative shall have received from Mayer, Brown &
Platt, counsel for the Underwriters, such opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Final Prospectus and other related matters as
the Representative 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.
(iv) The Company shall have furnished to the Representative a
certificate of the Company, signed by the Chairman of the Board, the
President or any Vice President and by the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect
that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, the Indenture and this
Agreement and that:
(A) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(B) 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
(C) since the date of the most recent financial statements
included in the Final Prospectus, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus.
(v) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representative a letter or letters, dated as of the
Closing Date, in form and substance satisfactory to the Representative and
PricewaterhouseCoopers LLP, 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:
(A) in their opinion, the consolidated financial statements
(including financial schedules) of the Company and its subsidiaries
examined by and reported on by them and included or incorporated by
reference in the Registration Statement and the Final Prospectus
comply as to form in all
-11-
<PAGE>
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;
(B) 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:
(I) reading the minutes of meetings of stockholders and the
Board of Directors of the Company as set forth in the minute
books through a specified date not more than five business days
prior to the date of delivery of such letter;
(II) reading the latest available unaudited interim
consolidated financial data of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement or the Final Prospectus and the latest
unaudited interim financial data made available by the Company
and its subsidiaries; and
(III) making inquiries of certain officials of the Company
who have responsibilities for financial and accounting matters
regarding the specific items for which representations are
requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) the unaudited interim consolidated financial data of the
Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act
and the Exchange Act and the related published rules and
regulations thereunder;
(2) any material modifications should be made to said
unaudited consolidated financial data of the Company and its
consolidated subsidiaries for it to be in conformity with
generally accepted accounting principles;
-12-
<PAGE>
(3)(a) with respect to the period subsequent to the date of
the most recent financial statements (other than any capsule
information), audited or unaudited, included or incorporated by
reference in the Registration Statement and the Final Prospectus,
at the date of the latest available interim financial data and at
a specified date not more than five business days prior to the
date of delivery of such letter, except as otherwise disclosed in
the Final Prospectus or incorporated by reference and except when
such data is not prepared by or available from the Company, there
was any change in the common stock or long-term debt of the
Company and its consolidated subsidiaries or any decreases in
consolidated total assets, net current assets (working capital)
or stockholders' investment as compared with amounts shown in the
latest consolidated balance sheet included or incorporated by
reference in the Registration Statement or the Final Prospectus
or (b) for the period from the date of the most recent financial
statements included or incorporated by reference in the
Registration Statement or the Final Prospectus to a specified
date not more than five business days prior to delivery of such
letter, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated
operating revenues, operating profit, income before income taxes
or in the total or per-share amounts of net income, except in all
instances for changes or decreases which the Registration
Statement and the Final Prospectus disclose have occurred or may
occur, or as set forth in such letter accompanied by an
explanation thereof;
(4) with regard to the Company and its consolidated
subsidiaries, the amounts included in any unaudited "capsule"
information included or incorporated by reference in the
Registration Statement or the Final Prospectus do not agree with
the corresponding amounts in the audited or unaudited
consolidated financial statements from which such amounts were
derived or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus;
(D) 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
-13-
<PAGE>
statistical information derived from the general accounting records of
the Company and its subsidiaries and subject to the Company's system
of internal accounting controls relating to the preparation of the
financial statements) set forth or incorporated by reference in the
Registration Statement and the Final Prospectus, as amended or
supplemented, including Exhibit 12 to the Registration Statement and
the information included or incorporated in Items 1, 6 and 7 of the
Company's Annual Report on Form 10-K and in "Management's Discussion
and Analysis of Financial Condition and Results of Operations"
included or incorporated by reference in any of the Company's
Quarterly Reports on Form 10-Q, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of legal
interpretation; and
(E) if unaudited pro forma financial statements are included or
incorporated by reference in the Registration Statement and the Final
Prospectus, on the basis of a reading of the unaudited pro forma
financial statements, carrying out certain specified procedures,
inquiries of certain officials of the Company and the acquired company
who have responsibility for financial and accounting matters, and
proving the arithmetic accuracy of the pro forma financial statements,
nothing came to their attention which caused them to believe that the
pro forma financial statements were not properly compiled on the pro
forma bases set forth in the notes thereto.
References to the Registration Statement and the Final Prospectus in the
paragraph (v) are to such documents as amended and supplemented at the date
of the letter.
(vi) Subsequent to the date as of which information is given in the
Registration Statement and the Final Prospectus, there shall not have been
(A) any change or decrease specified in the letter referred to in paragraph
(a)(v) of this Section 5, except as disclosed in the Final Prospectus or
incorporated by reference therein, or (B) any change, or any development
involving a prospective change, in or affecting the business or properties
of the Company and its subsidiaries or AOL, and its subsidiaries, the
effect of which, in any case referred to in clause (Ai) or (B) above, is,
in the judgment of the Representative, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or the delivery
of the Securities as contemplated by the Registration Statement and the
Final Prospectus.
(vii) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading in
the rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Act.
-14-
<PAGE>
(viii) Prior to the Closing Date, the Company shall have furnished to
the Representative such further information, certificates and documents as
the Representative may reasonably request.
(b) In the event the Underwriters exercise their option provided in Section
2(b) hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be true
and correct in all material respects as of each Option Closing Date, and, on the
relevant Option Closing Date, the Underwriters shall have received:
(i) A certificate, dated such Option Closing Date, of officers of the
Company confirming that the certificate of the officers of the Company
delivered on the Closing Date pursuant to Section 5(a)(iv) hereof remains
true and correct as of such Option Closing Date;
(ii) The favorable opinion of Sidley & Austin, in form and substance
reasonably satisfactory to your counsel, dated such Option Closing Date,
relating to the Option Securities and otherwise to the same effect as the
opinion required by Section 5(a)(ii) hereof;
(iii) The favorable opinion of your counsel, Mayer, Brown & Platt,
dated such Option Closing Date, relating to the Option Securities and
otherwise to the same effect as the opinion required by Section 5(a)(iii)
hereof; and
(iv) A letter from PricewaterhouseCoopers LLP, in form and substance
satisfactory to you and dated such Option Closing Date, substantially the
same in scope and substance as the letter furnished to you pursuant to
Section 5(a)(v) hereof, except that the specified date in the letter
furnished pursuant to this Section 5(b)(iv) shall be a date not more than
five days prior to such Option Closing Date.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representative and counsel to the Underwriters, this
Agreement and all obligations of the Underwriters hereunder, or in the case of
any condition to the purchase of Option Securities on an Option Closing Date
which is after the Closing Date, the obligation of the Underwriters to purchase
the relevant Option Securities, may be canceled at, or any time prior to, the
Closing Date or the relevant Option Closing Date by the Representative. Notice
of such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6 Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, including a default under Section 8, the
Company will
-15-
<PAGE>
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including the reasonable fees and disbursements of Mayer, Brown & Platt) that
shall have been reasonably incurred by them in connection with the proposed
purchase and sale of the Securities.
7 Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of the Act or the Exchange Act against any and all losses,
claims, damages, liabilities or expenses, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, and for the
aggregate amount paid in settlement of any litigation or any investigation or
proceeding by any governmental agency or body, insofar as such losses, claims,
damages, liabilities, expenses or amounts (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representative
specifically for use in connection with the preparation thereof, or arises out
of or is based upon the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee, and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person did not receive a copy
of the Final Prospectus (or the Final Prospectus as amended or supplemented)
excluding documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Company by on
or behalf of such Underwriter through the Representative specifically for use in
the preparation of the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have.
-16-
<PAGE>
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (other than local counsel used principally to facilitate local
litigation), approved by the Representative in the case of paragraph (a) of this
Section 7, representing the indemnified parties under such paragraph (a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment (after
all rights to appeal have been exhausted) for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel required to be paid by this Section 7(c), the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more
than 90 days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such aforesaid request prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could be a party unless such
-17-
<PAGE>
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in Section 7 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Securities or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Securities shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Final Prospectus
bear to the aggregate initial public offering price of such Securities as set
forth on such cover. The relative fault of the Company, on the one hand, and
the Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as such Underwriter, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within
-18-
<PAGE>
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective names
in Schedule II hereto and not joint.
8 Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the number of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate number
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
number of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate number of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date or the Option Closing Date, as the
case may be, shall be postponed for such period, not exceeding seven days, as
the Representative shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
9 Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representative, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i)
trading in the Company's or AOL's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it in the case of (i), (ii) or
(iii), in the judgment of the Representative, impracticable to market the
Securities as contemplated in the Final Prospectus.
10 Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Section 6 and 7 hereof shall survive delivery of and payment for the Securities.
The provisions of Sections 6 and 7 hereof shall survive the termination or
cancellation of this Agreement.
-19-
<PAGE>
11 Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Tribune Company, 435 North Michigan Avenue,
Chicago, Illinois 60611, attention of David J. Granat, Vice President and
Treasurer (with a copy to the General Counsel of Tribune Company).
12 Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13 Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
14 Counterparts. This Agreement and any amendments hereto may be
executed in any number of counterparts, each of which shall be deemed to be an
original but all of which together shall constitute but one agreement.
-20-
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
TRIBUNE COMPANY
By: /s/ Crane H. Kenney
----------------------------------------------
Its: Vice President/General Counsel and
Secretary
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Michael O'Grady
--------------------------------
Title: Director
For themselves and the other several Underwriters
named in Schedule II to the foregoing Agreement.
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<PAGE>
Schedule I
Underwriting Agreement dated April 7, 1999
Registration Statement No. 333-74961
Representative: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Title, Purchase Price and
Description of Securities
<TABLE>
<CAPTION>
Title: PHONES
<S> <C>
Number of Initial Securities: 7,000,000
Overallotment Option: 1,000,000
Issue Price: $157.00
Maturity Date: May 15, 2029
Ratings (Moody's/S&P): A3/A-
Underlying Security: The common stock, par value $.01 per share,
of America Online, Inc., a Delaware
corporation
Cash Payment Period: Quarterly
Quarterly Cash Payment: An amount equal to $0.785 per PHONES (or
2.00% per year of the original principal
amount), plus the amount, if any, of quarterly
cash dividends paid on the reference shares
(as defined in the Final Prospectus)
attributable to each PHONES
Call Option: The sum of (a) the higher of the contingent
principal amount (as defined in the Final
Prospectus) of the PHONES or the sum of the
current market value of the reference shares
plus any deferred quarterly payments of
interest, plus, in either case, the final
period distribution (as defined in the Final
</TABLE>
-22-
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Prospectus), and (b) $9.42 if such redemption
takes place before May 15, 2000, $6.28 if such
redemption takes place after May 15, 2000, but
before May 15, 2001, $3.14 if such redemption
takes place after May 15, 2001, but before May
15, 2002 or zero if such redemption takes place
on or after May 15, 2002
Form Book entry through DTC
Settlement Form Cash only
Closing Date, Time April 13, 1999 at 9:30 a.m Central Time at the
and Location: offices of Sidley & Austin, One First National
Plaza, Chicago, Illinois 60603
</TABLE>
-23-
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Number of Number of
Initial Securities Option Securities
Underwriters to be Purchased to be Purchased
-------------- -------------------- --------------------
<S> <C> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated........................ 3,850,000
Allen & Company Incorporated.................... 700,000
Morgan Stanley & Co. Incorporated............... 700,000
Salomon Smith Barney Inc........................ 700,000
Chase Securities Inc............................ 350,000
J.P. Morgan Securities Inc...................... 350,000
NationsBanc Montgomery Securities LLC........... 350,000
--------- --------------------
Total...................................... 7,000,000 1,000,000
</TABLE>
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<PAGE>
EXHIBIT 4
________________________________________________________________________________
TRIBUNE COMPANY,
ISSUER
AND
BANK OF MONTREAL TRUST COMPANY,
TRUSTEE
_____________________________
INDENTURE
DATED AS OF APRIL 1, 1999
______________________________
SUBORDINATED DEBT SECURITIES
________________________________________________________________________________
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture dated as of April 1, 1999 between Tribune Company and Bank of Montreal
Trust Company
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
(S) 310 (a)(1) ............................. 6.09
(a)(2) ............................. 6.09
(a)(3) ............................. Not Applicable
(a)(4) ............................. Not Applicable
(a)(5) ............................. 6.09
(b) ............................. 6.08, 6.10
(S) 311 (a) ............................. 6.13
(b) ............................. 6.13
(b)(2) ............................. 7.03(a), 7.03(b)
(S) 312 (a) ............................. 7.01, 7.02(a)
(b) ............................. 7.02(b)
(c) ............................. 7.02(c)
(S) 313 (a) ............................. 7.03(a)
(b) ............................. 7.03(b)
(c) ............................. 7.03(a), 7.03(b)
(d) ............................. 7.03(b)
(S) 314 (a) ............................. 7.04
(a)(4) ............................. 10.07
(b) ............................. Not Applicable
(c)(1) ............................. 1.02
(c)(2) ............................. 1.02
(c)(3) ............................. Not Applicable
(d) ............................. Not Applicable
(e) ............................. 1.02
(S) 315 (a) ............................. 6.01(a)
(b) ............................. 6.02, 7.03(a)
(c) ............................. 6.01(b)
(d) ............................. 6.01(c)
(d)(1) ............................. 6.01(a), 601(c)(1)
(d)(2) ............................. 6.01(c)(2)
(d)(3) ............................. 6.01(c)(3)
(e) ............................. 5.14
(S) 316 (a) ............................. 1.01
(a)(1)(A) ............................. 5.02, 5.12
(a)(1)(B) ............................. 5.02, 5.13
(a)(2) ............................. Not Applicable
(b) ............................. 5.08
(c) ............................. 1.04(d)
(S) 317 (a)(1) ............................. 5.03
(a)(2) ............................. 5.04
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(b) ............................. 10.03
(S) 318 (a) ............................. 1.07
____________________
NOTE: This reconciliation and tie shall not, for any purpose, deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
<TABLE>
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RECITALS OF THE COMPANY................................................... 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.......... 1
SECTION 1.01. Definitions................................................ 1
Act............................................................. 2
Affiliate....................................................... 2
Authenticating Agent............................................ 2
Board of Directors.............................................. 2
Board Resolution................................................ 2
Business Day.................................................... 2
Commission...................................................... 2
Company......................................................... 3
Company Request or Company Order................................ 3
Corporate Trust Office.......................................... 3
Corporation..................................................... 3
Currency........................................................ 3
Depository...................................................... 3
Discharged...................................................... 3
Dollar or $..................................................... 3
Event of Default................................................ 3
Fixed Rate Security............................................. 3
Floating Rate Security.......................................... 3
Foreign Currency................................................ 3
Global Security................................................. 3
Holder.......................................................... 4
Indenture....................................................... 4
Officers' Certificate........................................... 4
Opinion of Counsel.............................................. 4
Original Issue Discount Security................................ 4
Outstanding..................................................... 4
Paying Agent.................................................... 5
Person.......................................................... 5
Predecessor Security............................................ 5
Redemption Date................................................. 6
Redemption Price................................................ 6
Responsible Officer............................................. 6
Securities...................................................... 6
Security Register............................................... 6
Significant Subsidiary.......................................... 6
Subsidiary...................................................... 6
Trustee......................................................... 6
</TABLE>
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Trust Indenture Act............................................. 6
Vice President.................................................. 7
United States................................................... 7
U.S. Government Obligations..................................... 7
SECTION 1.02. Compliance Certificates and Opinions....................... 7
SECTION 1.03. Form of Documents Delivered to Trustee..................... 7
SECTION 1.04. Acts of Holders............................................ 8
SECTION 1.05. Notices, Etc., to Trustee and Company...................... 9
SECTION 1.06. Notice to Holders; Waiver.................................. 10
SECTION 1.07. Conflict with Trust Indenture Act.......................... 10
SECTION 1.08. Effect of Headings and Table of Contents................... 10
SECTION 1.09. Successors and Assigns..................................... 10
SECTION 1.10. Separability Clause........................................ 11
SECTION 1.11. Benefits of Indenture...................................... 11
SECTION 1.12. Governing Law.............................................. 11
SECTION 1.13. Legal Holidays............................................. 11
SECTION 1.14. Incorporators, Stockholders, Officers and Directors
Exempt from Individual Liability........................ 11
ARTICLE II
SECURITY FORMS........................................ 12
SECTION 2.01. Forms Generally............................................ 12
SECTION 2.02. Form of Trustee's Certificate of Authentication............ 12
SECTION 2.03. Securities Issuable in the Form of a Global Security....... 13
SECTION 2.04. CUSIP Number............................................... 15
ARTICLE III
THE SECURITIES........................................ 16
SECTION 3.01. Amount Unlimited; Issuable in Series....................... 16
SECTION 3.02. Denominations.............................................. 19
SECTION 3.03. Execution, Authentication, Delivery and Dating............. 19
SECTION 3.04. Temporary Securities....................................... 21
SECTION 3.05. Registration, Registration of Transfer and Exchange........ 21
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities........... 22
SECTION 3.07. Payment of Interest; Interest Rights Preserved............. 23
SECTION 3.08. Persons Deemed Owners...................................... 24
SECTION 3.09. Cancellation............................................... 24
SECTION 3.10. Computation of Interest.................................... 24
SECTION 3.11. Currency of Payments in Respect of Securities.............. 24
SECTION 3.12. Judgments.................................................. 25
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ARTICLE IV
SATISFACTION AND DISCHARGE............................... 25
SECTION 4.01. Satisfaction and Discharge of Indenture.................... 25
SECTION 4.02. Application of Trust Money................................. 27
ARTICLE V
REMEDIES............................................. 27
SECTION 5.01. Events of Default.......................................... 27
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment......... 29
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.................................. 30
SECTION 5.04. Trustee May File Proofs of Claim........................... 31
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities.............................................. 32
SECTION 5.06. Application of Money Collected............................. 32
SECTION 5.07. Limitation on Suits........................................ 33
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................... 33
SECTION 5.09. Restoration of Rights and Remedies......................... 34
SECTION 5.10. Rights and Remedies Cumulative............................. 34
SECTION 5.11. Delay or Omission Not Waiver............................... 34
SECTION 5.12. Control by Holders......................................... 34
SECTION 5.13. Waiver of Past Defaults.................................... 35
SECTION 5.14. Undertaking for Costs...................................... 35
SECTION 5.15. Waiver of Stay or Extension Laws........................... 35
SECTION 5.16. Duty to Accelerate......................................... 36
ARTICLE VI
THE TRUSTEE........................................... 36
SECTION 6.01. Certain Duties and Responsibilities........................ 36
SECTION 6.02. Notice of Defaults......................................... 37
SECTION 6.03. Certain Rights of Trustee.................................. 37
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities..... 39
SECTION 6.05. May Hold Securities........................................ 39
SECTION 6.06. Money Held in Trust........................................ 39
SECTION 6.07. Compensation and Reimbursement............................. 39
SECTION 6.08. Disqualification; Conflicting Interests.................... 40
SECTION 6.09. Corporate Trustee Required; Eligibility.................... 40
SECTION 6.10. Resignation and Removal; Appointment of Successor.......... 40
SECTION 6.11. Acceptance of Appointment by Successor..................... 42
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business............................................. 43
SECTION 6.13. Preferential Collection of Claims Against Company.......... 43
SECTION 6.14. Appointment of Authenticating Agent........................ 43
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.............. 45
SECTION 7.01. Company to Furnish Trustee Names and Addresses
of Holders.............................................. 45
SECTION 7.02. Preservation of Information; Communications to
Holders................................................. 45
SECTION 7.03. Reports by Trustee......................................... 47
SECTION 7.04. Reports by Company......................................... 47
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE............ 48
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms....... 48
SECTION 8.02. Successor Corporation Substituted.......................... 48
ARTICLE IX
SUPPLEMENTAL INDENTURES.................................. 49
SECTION 9.01. Supplemental Indentures without Consent of Holders......... 49
SECTION 9.02. Supplemental Indentures with Consent of Holders............ 50
SECTION 9.03. Execution of Supplemental Indentures....................... 51
SECTION 9.04. Effect of Supplemental Indentures.......................... 51
SECTION 9.05. Conformity with Trust Indenture Act........................ 51
SECTION 9.06. Reference in Securities to Supplemental Indentures......... 51
ARTICLE X
COVENANTS............................................ 52
SECTION 10.01. Payment of Principal, Premium and Interest................ 52
SECTION 10.02. Maintenance of Office or Agency........................... 52
SECTION 10.03. Money for Securities Payments To Be Held in Trust......... 52
SECTION 10.04. Corporate Existence....................................... 53
SECTION 10.05. Maintenance of Properties................................. 54
SECTION 10.06. Payment of Taxes and Other Claims......................... 54
SECTION 10.07. Statement as to Compliance................................ 54
SECTION 10.08. Waiver of Certain Covenants............................... 55
SECTION 10.09. Payment of Additional Amounts............................. 55
ARTICLE XI
REDEMPTION OF SECURITIES................................. 55
SECTION 11.01. Applicability of Article.................................. 55
SECTION 11.02. Election to Redeem; Notice to Trustee..................... 55
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed......... 56
SECTION 11.04. Notice of Redemption...................................... 56
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SECTION 11.05. Deposit of Redemption Price............................... 57
SECTION 11.06. Securities Payable on Redemption Date..................... 57
SECTION 11.07. Securities Redeemed in Part............................... 57
ARTICLE XII
SINKING FUNDS......................................... 58
SECTION 12.01. Applicability of Article.................................. 58
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities..... 58
SECTION 12.03. Redemption of Securities for Sinking Fund................. 58
ARTICLE XIII
DEFEASANCE........................................... 59
SECTION 13.01. Applicability of Article.................................. 59
SECTION 13.02. Defeasance upon Deposit of Moneys or U.S. Government
Obligations............................................. 59
SECTION 13.03. Deposited Moneys and U.S. Government Obligations to
Be Held in Trust........................................ 61
SECTION 13.04. Repayment to Company...................................... 61
ARTICLE XIV
SUBORDINATION......................................... 61
SECTION 14.01. Securities Subordinate to Senior Indebtedness............. 61
SECTION 14.02. Payment Over of Proceeds upon Dissolution, Etc............ 62
SECTION 14.03. Prior Payment to Senior Indebtedness upon Acceleration
of Securities........................................... 64
SECTION 14.04. Default in Senior Indebtedness............................ 65
SECTION 14.05. Payment Permitted if No Default........................... 65
SECTION 14.06. Subrogation Rights of Holders of Senior Indebtedness...... 65
SECTION 14.07. Provision Solely to Define Relative Rights................ 66
SECTION 14.08. Trustee to Effectuate Subordination....................... 66
SECTION 14.09. No Waiver of Subordination Provisions..................... 66
SECTION 14.10. Notice to Trustee......................................... 67
SECTION 14.11. Reliance on Judicial Order or Certificate of Liquidating
Agent................................................... 68
SECTION 14.12. Trustee Not Fiduciary for Holders of Senior
Indebtedness............................................ 68
SECTION 14.13. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights........................ 68
SECTION 14.14. Article XIV Applicable to Paying Agents................... 69
</TABLE>
____________________
NOTE: This table of contents shall not, for any purpose, deemed to be a part
of the Indenture.
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INDENTURE, dated as of April 1, 1999 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
"generally accepted accounting principles" with respect to any computation
required or
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permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(4) the word "including" (and with correlative meaning
"include") means including, without limiting the generality of, any
description preceding such term; and
(5) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
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(a).
---------------
"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 or any city in
which the Trustee's Corporate Trust Office is located, 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, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
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"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President
and Chief Executive Officer, or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Controller, an Assistant Controller, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"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 principally administered, which office at the date of
execution of this Indenture is located at Wall Street Plaza, 88 Pine Street,
19th Floor, 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.
"Event of Default" has the meaning specified in Section 5.01.
------------
"Fixed Rate Security" means a Security which provides for the payment
of interest at a fixed rate.
"Floating Rate Security" means a Security which provides for the
payment of interest at a variable rate determined periodically by reference to
any security issued by the Company or another company or to an index or
otherwise as 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
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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 the Person or Persons in whose name or names a
particular Security is registered in the Security Register.
"Indebtedness" has the meaning specified in Section 14.01.
-------------
"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.
------------
"Net Worth" means the aggregate amount of stockholders' investment as
determined in accordance with generally accepted accounting principles.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
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:
(1) Securities theretofore cancelled by the Trustee or any
Authenticating Agent or delivered to the Trustee or any Authenticating
Agent for cancellation;
(2) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities; provided that,
-------- ----
if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
-4-
<PAGE>
(3) 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; and
(4) Securities which have been Discharged pursuant to Section
-------
13.02;
-----
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, (i) 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 (ii) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any), interest or other amounts on any Securities
on behalf of the Company.
"Person" means any individual, corporation, limited liability company,
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" of a Security on any day and for any purpose means the
amount (including without limitation, in the case of an Original Issue Discount
Security, any accrued original issue discount, but excluding interest) that is
payable with respect to such Security as of such date and for such purpose
(including without limitation, in connection with any sinking fund, upon any
redemption at the option of the Company upon any purchase or exchange at the
option of the Company or the holder of such Security and upon the acceleration
of the maturity of such Security).
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"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"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.
------------
"Senior Indebtedness" has the meaning specified in Section 14.01.
-------------
"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
amended, as in force at the date as of which this instrument was executed,
except as provided in Section 9.05; provided, however, that in the event that
------------ -------- -------
such act is amended after such date, "Trust Indenture Act" means, to the extent
required by such amendment, the Trust Indenture Act of 1939, as amended.
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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 10.07) or opinion with respect to compliance with a
-------------
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. 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
-7-
<PAGE>
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 by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments is or are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
------------
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such
-8-
<PAGE>
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 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.
-9-
<PAGE>
SECTION 1.06. Notice to Holders; Waiver.
-------------------------
Where this Indenture or any Security provides for notice to Holders of
any event, such notice shall be deemed sufficiently given (unless otherwise
herein or in such Security expressly provided) if in writing and mailed, first-
class postage prepaid, to each Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice
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 or the validity of the
proceedings to which such notice relates. Where this Indenture or any Security
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
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.
-10-
<PAGE>
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.
---------------------
Except as expressly provided in Article Fourteen with respect to
----------------
holders of Senior Indebtedness, nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of Illinois except as may be otherwise
required by mandatory provisions of law.
SECTION 1.13. Legal Holidays.
--------------
Unless otherwise specified pursuant to Section 3.01, in any case where
------------
the due date of interest on or principal of any Security or the date fixed for
redemption of any Security shall not be a Business Day then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day or on such other date specified pursuant to
Section 3.01 with the same force and effect as if made on such due date or
- ------------
Redemption Date and no interest shall accrue for the period from and after such
prior date; provided, however that if the next succeeding Business Day is in the
-------- -------
next calendar year, such payment shall be made on the preceding Business Day or
on such other date specified pursuant to Section 3.01.
------------
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.
-11-
<PAGE>
ARTICLE II
SECURITY FORMS
SECTION 2.01. Forms Generally.
---------------
The Securities of each series shall be in substantially the form or
forms as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rules made pursuant thereto or with
any rules of any securities exchange or all as may, consistently herewith, be
determined by the officers executing such Securities to be necessary or
appropriate, as evidenced by their execution of the Securities. If the form of
Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action together with a true
and correct copy of the form of the Securities of such series approved by or
pursuant to such Board Resolution shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.03 for the
------------
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be 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:
-12-
<PAGE>
This is one of the Securities of the series designated pursuant to the
within-mentioned Indenture.
By:_______________________________
As Trustee
OR
By:_____________________________
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 make available for delivery, 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 make available for
delivery by the Trustee to the Depository or pursuant to the Depository's
instruction and (iv) shall bear a legend substantially to the following effect:
"THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY
OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY."
(b) Notwithstanding any other provision of this Section 2.03 or of
------------
Section 3.05, unless otherwise provided in the Global Security, a Global
- ------------
Security may be transferred, in whole but not in part and in the manner provided
in Section 3.05, only to the Depository or another nominee of the Depository for
------------
such 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.
-13-
<PAGE>
(c) If at any time the Depository for a Global Security notifies the
Company that it is unwilling or unable to continue as Depository for such Global
Security or if at any time the Depository for the Securities for such series
shall no longer be eligible or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, the Company
shall appoint a successor Depository with respect to such Global Security. If a
successor Depository for such Global Security is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section 3.01(18) 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.
(d) 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.
(e) A Global Security will also be exchangeable if there shall have
occurred and is continuing an Event of Default or an event which, with the
giving of notice or lapse of time or both, would constitute an Event of Default
with respect to the Securities of such series represented by such Global
Security. In such event the Company will execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of individual Securities
of such series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Securities of such series of like tenor and
terms in definitive form in an aggregate principal amount equal to the principal
amount of such Global Security or Securities representing such series in
exchange for such Global Securities or Securities.
(f) 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.
-14-
<PAGE>
(g) Upon issuance, all Securities with identical terms and held by
the Depository on behalf of its participants will be represented by one or more
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.
(h) In any exchange provided for in any of the preceding five
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual fully registered Securities in authorized denominations,
provided that the definitive Securities so issued in exchange for a Global
Security shall be in denominations of $100,000 and any aggregate principal
amount and tenor as the portion of such Global Security to be exchanged, and
provided further that, unless the Company agrees otherwise, Securities in
certificated registered form will be issued in exchange for a Global Security,
or any portion thereof, only if such Securities in certificated registered form
were requested by written notice to the Trustee or the Securities Registrar by
or on behalf of a person who is beneficial owner of an interest thereof given
through the Holder hereof. Except as provided above, owners of beneficial
interest in a Global Security will not be entitled to receive physical delivery
of Securities in certificated registered form and will not be considered the
Holders thereof for any purpose under the Indenture. No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. Upon the exchange of a Global Security
for individual Securities, such Global Security shall be cancelled by the
Trustee. Securities issued in exchange for a Global Security pursuant to this
Section 2.03 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.
(i) 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.
(j) 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.
SECTION 2.04. CUSIP Number
------------
The Company in issuing Securities of any series may use a "CUSIP"
number, and if so, the Trustee may use the CUSIP number in notices of redemption
or exchange as a convenience to Holders of such series; provided, that any such
--------
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed on the
-15-
<PAGE>
notice or on the Securities of such series, and that reliance may be placed only
on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the CUSIP number
of any series of Securities.
ARTICLE III
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the initial issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in 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 formula, if any, by which the principal amount of Securities
of the series outstanding may be determined from time to time;
(4) 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 or the method of
determination thereof;
(5) 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;
(6) the place or places, if any, in addition to The City of New York,
where the principal of (and premium, if any) and interest on Securities of
the series shall be payable and the method of payment therefor;
-16-
<PAGE>
(7) 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;
(8) the obligation, if any, of the Company to redeem, purchase,
convert, exchange or repay Securities of the series pursuant to any sinking
fund or analogous provisions or otherwise 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, purchased, converted, exchanged 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;
(9) provisions, if any, for the defeasance of Securities of the
series;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(11) 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;
----
(12) 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;
(13) 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;
(14) if the amount of payments of principal (and premium, if any) or
interest on the Securities of the series may be determined with reference
to one or more securities issued by the Company or another company or 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;
-17-
<PAGE>
(15) 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);
(16) the right of the Company, if any, to extend or defer interest
payment periods and the duration of such extension or deferral, the dates
on which such payment of interest shall be payable and whether and under
what circumstances additional interest on amounts deferred shall be
payable;
(17) 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;
(18) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities or for other
Global Securities; and the Depository for such Global Security or
Securities;
(19) 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
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto. All Securities of any series need not be
issued at the same time and may be issued from time to time, consistent with the
terms of this Indenture, if so provided by or pursuant to such Board Resolution
and set forth in such 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, or providing the manner for determining, the terms of
the series.
-18-
<PAGE>
SECTION 3.02. Denominations.
-------------
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.01. In the absence of any such provisions with respect to the
- ------------
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof and shall be payable
only in Dollars.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order and subject to the provisions hereof shall authenticate
and make such Securities available for delivery. If the form or terms of the
Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 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;
-19-
<PAGE>
(3) the terms of such Securities have been established in conformity
with the provisions of this Indenture;
(4) in the event that the form or terms of such Securities have been
established in a supplemental indenture, the execution and delivery of such
supplemental indenture have been duly authorized by all necessary corporate
action of the Company, such supplemental indenture has been duly executed
and delivered by the Company and, assuming due authorization, execution and
delivery by the Trustee, is a valid and binding obligation enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law);
(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.
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<PAGE>
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
SECTION 3.04. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued 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 make available for delivery 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 make available for
delivery, in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and of a like
aggregate principal amount.
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,
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<PAGE>
and the Trustee shall authenticate and make available for delivery, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company or any registrar with respect to such series of
Securities, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any
------------ ---- -----
transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.03 and ending
-------------
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
None of the Company, the Trustee, any Paying Agent or the Securities
Registrar will have any responsibility or liability for any aspect of the
Depository's records relating to or payment made on account of beneficial
ownership interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Company or to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity 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
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<PAGE>
the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any interest payment date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the record date (as hereinafter defined) for such
interest notwithstanding the cancellation of such Security upon the registration
of transfer or exchange subsequent to the record date and prior to such interest
payment date; provided, however, that if and to the extent that the Company
-------- -------
shall default in the payment of the interest due on such interest payment date,
such defaulted interest shall be paid to the Persons in whose names outstanding
Securities are registered at the close of business on a subsequent record date
established by notice given by mail by and on behalf of the Company to the
Holders of Securities not less than fifteen days preceding such subsequent
record date, such record date to be not less than ten days preceding the date of
payment of such defaulted interest. The term "record date" as 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.
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<PAGE>
SECTION 3.08. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 3.07) interest on such Security and for all other
------------
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.09. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it; provided, however, that if surrendered to
-------- -------
any Authenticating Agent, such Securities shall be promptly cancelled by such
Authenticating Agent and forwarded to the Trustee. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of as directed by a Company Order; provided that the Trustee shall not
-------- ----
be required to dispose of securities in a manner deemed impracticable by the
Trustee.
SECTION 3.10. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.01 for
------------
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
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
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<PAGE>
whether the Holders entitled to perform such Act have performed it, or as of the
date of such decision or determination by the Trustee, as the case may be.
(c) Any decision or determination to be made by the Trustee regarding
exchange rates may be made instead by an agent appointed by the Trustee and
acceptable to the Company; provided that such agent shall accept such
appointment in writing and the terms of such appointment shall be acceptable to
the Company and shall, in the opinion of the Company and the Trustee at the time
of such appointment, require such agent to make such determination by a method
consistent with the method provided pursuant to Section 3.01 for the making of
------------
such decision or determination. All decisions and determinations of the Trustee
or the agent regarding exchange rates shall be in its sole discretion and shall,
in the absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company and all Holders of the Securities.
SECTION 3.12. Judgments.
---------
The Company may provide pursuant to Section 3.01 for Securities of any
------------
series that the obligation, if any, of the Company to pay the principal of (and
premium, if any) and interest on the Securities of any series in a Foreign
Currency or Dollars (the "Designated Currency") as may be specified pursuant to
-------------------
Section 3.01 is of the essence and thereby agree that, to the fullest extent
- ------------
possible under applicable law, judgments in respect of such Securities shall be
given in the Designated Currency. In such event, the obligation of the Company
to make payments in the Designated Currency of the principal of (and premium, if
any) and interest on such Securities shall, notwithstanding any payment in any
other Currency (whether pursuant to a judgment or otherwise), be discharged only
to the extent of the amount of the Designated Currency that the Holder receiving
such 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
-25-
<PAGE>
expressly provided for), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.06 and
------------
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.03) have been delivered to the Trustee for cancellation; or
-------------
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their stated maturity
within one year, or
(iii) if the Securities of such series are denominated and
payable only in Dollars (except as provided pursuant to Section
-------
3.01) 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.
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<PAGE>
In the event there are Securities of two or more series hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and
discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then the
effectiveness of any such instrument shall be conditioned upon receipt of such
instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
------------
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
------------
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.02 and the last
------------
paragraph of Section 10.03 shall survive.
------------
SECTION 4.02. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 10.03, all
------------
money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
------------
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of 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 which
has occurred and is continuing):
(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 (subject to the Company's right, if any, to defer any
payment or extent any due date in accordance with the terms of the
Securities of such series); 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
-27-
<PAGE>
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section 5.01 specifically dealt with or which has expressly been
------------
included in this Indenture solely for the benefit of series of Securities
other than that series), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Significant
Subsidiary in 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
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<PAGE>
Company or any Significant Subsidiary of an assignment for the benefit of
creditors, or the Company or any Significant Subsidiary shall fail
generally to pay its debts as they become due, or the taking of corporate
action by the Company or any Significant Subsidiary in furtherance of any
such action; or
(7) any other Event of Default provided with respect to Securities of
that series.
For purposes of this Section 5.01 the term "Significant Subsidiary"
------------
shall mean any Subsidiary (i) which, as of the close of the fiscal year of the
Company immediately preceding the date of any determination hereunder,
contributed more than 7% of the consolidated gross operating revenues of the
Company and its Subsidiaries, or (ii) the Net Worth of which (determined in a
manner consistent with the manner of determining consolidated Net Worth of the
Company and its Subsidiaries) as of the close of such immediately preceding
fiscal year exceeded 7% of the consolidated Net Worth of the Company and its
Subsidiaries.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the
time Outstanding, occurs and is continuing, then in every such case, unless the
principal of all of the Securities of such series shall have already become due
and payable, the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series may declare the principal amount
(or, in the case of certain Securities which provide for less than the entire
principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to this Section 5.02, such portion
------------
of the principal amount as may be specified in the terms of that series of
Securities) and the interest accrued thereon of all of the Securities of that
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) and interest accrued thereon shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum in the
Currency in which such Securities are denominated (except as otherwise
provided pursuant to Section 3.01) sufficient to pay
------------
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of
-29-
<PAGE>
acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.
------------
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration shall have been rescinded and
annulled, the principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such declaration; and payment
of the portion of the principal thereof as shall have become due and payable as
a result of such declaration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Securities.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
----------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable (subject to the Company's right,
if any, to extend or defer an interest payment date in accordance with the
terms of such Security) 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,
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<PAGE>
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue interest, at the
rate or rates prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Company, or any other obligor upon
the Securities or the property of the Company, or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(1) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and to 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
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<PAGE>
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.07.
- ------------
Subject to the provisions of Article Eight of this Indenture, nothing
-------------
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
In any proceeding brought by the Trustee (and also in any proceeding
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities in respect to which action was taken, and it shall not
be necessary to make any Holders of such Securities parties to any such
proceedings.
SECTION 5.06. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article in respect
of Securities of any series shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon presentation of the
Securities in respect of which moneys have been collected and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
-------
6.07 applicable to such series;
----
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities of such
series in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities of such series for
principal (and premium, if any) and interest, respectively; and
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THIRD: To the Company.
SECTION 5.07. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a custodian, liquidator, assignee, sequestrator,
receiver, trustee, or other similar official, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of Holders of Securities of
any series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other 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 Holders of Securities of the affected
series.
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 (subject to any right
- ------------
of the Company, if any, to defer any payment or extend any due date in
accordance with the terms of the Security) expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
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SECTION 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
------------
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
-------- ----
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall have determined that the action so directed
would not be unjustly prejudicial to the Holders of any Securities of any
series with respect to which the Trustee is the Trustee not taking part in
such direction,
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(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(4) the Trustee shall be indemnified as hereinafter provided.
SECTION 5.13. Waiver of Past Defaults.
-----------------------
Subject to Section 5.02, the Holders of not less than a majority in
------------
principal amount of the Outstanding Securities of any series may by written
notice to the Trustee on behalf of the Holders of all the Securities of such
series waive any past default or Event of Default hereunder with respect to such
series and its consequences, except a default or Event of Default
(1) in respect of the payment of the principal of (or premium, if
any) or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
-------
Nine cannot be modified or amended without the consent of the Holder of
----
each Outstanding Security of such series affected.
Upon any such waiver, such default or Event of Default shall cease to
exist and shall be deemed to have been cured, for every purpose of this
Indenture and the Securities of such series; but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 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
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<PAGE>
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede
the exercise of any power herein granted to the Trustee, but will suffer and
permit the exercise of every such power as though no such law had been enacted.
SECTION 5.16. Duty to Accelerate.
------------------
The Trustee shall be under no duty to accelerate the debt hereunder or
to institute any proceedings unless it knows or in the exercise of reasonable
diligence should have known of the existence of an Event of Default hereunder.
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with respect
to Securities of any series, the Trustee's duties and responsibilities with
respect to Securities of such series under this Indenture shall be governed by
Section 315(a) of the Trust Indenture Act.
(b) In case an Event of Default with respect to Securities of any
series has occurred and is continuing, the Trustee shall exercise, with respect
to Securities of such series, such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
------ ----
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series pursuant to the provisions of Section 5.12
------------
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or
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<PAGE>
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.02. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
-------- -------
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and provided, further, that in the case of any default of the character
-------- -------
specified in Section 5.01(4) with respect to the Securities of such series, no
---------------
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or passage 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 and the Trust Indenture Act:
------------
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
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<PAGE>
(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 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.
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<PAGE>
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 neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 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 disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any
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<PAGE>
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
SECTION 6.08. Disqualification; Conflicting Interests.
---------------------------------------
The Trustee shall be disqualified only where such disqualification is
required by Section 310(b) of the Trust Indenture Act. Nothing shall prevent the
Trustee from filing with the Commission the application referred to in the
second to last paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 6.09. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a trustee hereunder which shall be
eligible to act as Trustee under Section 310(a)(1) of the Trust Indenture Act
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any Person directly or
indirectly controlling, controlled by, or under common control with the Company
may serve as Trustee. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article Six.
-----------
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 the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
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<PAGE>
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security 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 the Company with
respect to such Securities. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders 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
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<PAGE>
appear in the Security Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor 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
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<PAGE>
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 Six.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor (by merger,
conversion, consolidation or otherwise permitted hereunder) to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 6.14. Appointment of Authenticating Agent.
-----------------------------------
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.06 and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery by an Authenticating Agent and a certificate of
authentication executed by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of
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America, any State thereof or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal
or State authority. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 6.14, the combined
------------
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section 6.14, such Authenticating
------------
Agent shall resign immediately in the manner and with the effect specified in
this Section 6.14.
------------
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 6.14, without the execution or filing of any paper or any
------------
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such 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.
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 alternate
certificate of authentication in the following form:
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<PAGE>
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 regarding the names and addresses of the Holders of such
series as of such record date; provided, however, that if Securities of any
-------- -------
series shall have more than two regular interest payment dates in each
calendar year or shall not bear interest, then such list with respect to
such series of Securities will be furnished to the Trustee semi-annually on
such dates as may be agreeable to the Trustee; and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
except that if the Trustee is the sole registrar with respect to any series of
Securities, no such list need be furnished with respect to such series.
SECTION 7.02. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
------------
addresses of Holders received by the
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<PAGE>
Trustee in its capacity as sole Security Registrar, if so acting. The Trustee
may destroy any list furnished to it as provided in Section 7.01 upon receipt of
------------
a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
----------
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, at its election, either
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.02(a), or
---------------
(2) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 7.02(a), and as to the
---------------
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appears in the
information preserved at the time by the Trustee in accordance with Section
-------
7.02(a) a copy of the form of proxy or other communication which is specified in
- -------
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 7.02(b), regardless of the source from which such
---------------
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 7.02(b).
---------------
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<PAGE>
SECTION 7.03. Reports by Trustee.
------------------
(a) Within 60 days after May 15 of each year commencing with the year
2000, the Trustee shall transmit by mail to all Holders as provided in Section
313(c) of the Trust Indenture Act, a brief report dated as of such May 15, if
required by and in compliance with Section 313(a) of the Trust Indenture Act.
The Trustee shall also comply with Section 313(b) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 7.04. Reports by Company.
------------------
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); or, if
------------
the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the Trustee
and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to 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.
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<PAGE>
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and interest
on all the Securities and the due and punctual performance and observance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 8.02. Successor Corporation Substituted.
---------------------------------
Upon any consolidation of the Company with or merger of the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.01, the successor corporation formed by such consolidation or
------------
into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities.
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<PAGE>
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
------------- ----
(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
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<PAGE>
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
-------
6.11(b); or
-------
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture, provided such action shall not adversely affect the
interest of the Holders of Securities of any series in any material
respect.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
-------- -------
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 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 10.08, 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.
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<PAGE>
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 supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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<PAGE>
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 New York, for any series of
Securities, an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices to and demands upon
the Company in respect of the Securities of that series and this Indenture may
be served. Unless otherwise designated by the Company in a written notice to the
Trustee, such office or agency for all purposes shall be the Corporate Trust
Office of the Trustee. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain such required office
or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee in The City of New York, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
SECTION 10.03. 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.
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<PAGE>
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for one
year after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee 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 Subsidiary and the rights (charter and statutory) and
franchises of the Company and its Subsidiaries; provided, however, that the
-------- -------
Company shall not be required to preserve any such
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<PAGE>
right or franchise if the Company or the Subsidiary concerned 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 (normal wear and tear accepted) and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from
- -------- -------
discontinuing the operation and maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Company or of the Subsidiary concerned, desirable in the conduct of its
business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 10.06. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
--------
however, that the Company shall not be required to pay or discharge or cause to
- -------
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and the Company shall have set aside on its books adequate reserves
with respect thereto (segregated to the extent required by generally accepted
accounting principles).
SECTION 10.07. 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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<PAGE>
SECTION 10.08. 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 10.06, 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.
SECTION 10.09. Payment of Additional Amounts.
-----------------------------
If the Securities of any series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of any series
additional amounts upon the terms and subject to the conditions provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or interest on, or in respect
of, any Security of any series or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to include
mention of the payment of additional amounts provided for in the terms of such
Securities and this Section to the extent that, in such context, additional
amounts are, were or would be payable in respect thereof pursuant to the
provisions of this Section and express mention of the payment of additional
amounts (if applicable) in any provisions hereof shall not be construed as
excluding additional amounts in those provisions hereof where such express
mention is not made.
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
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<PAGE>
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, substantially pro rata, by lot
or by any other method as the Trustee shall deem fair and appropriate and that
complies with the requirements of the principal securities exchange, if any, on
which such Securities are listed, and which may provide for the selection for
redemption of portions (equal to the minimum authorized 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.
--------------------
Unless otherwise specified in the Securities of any series, 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;
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(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is the case;
and
(7) the CUSIP number, if any, of the Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 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
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<PAGE>
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.01. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
------------
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
-----------------
fund payment," and any payment in excess of such minimum amount provided for by
- ------------
the terms of Securities of any series is herein referred to as an "optional
--------
sinking fund payment." If provided for by the terms of Securities of any series,
- --------------------
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.02. Each sinking fund payment shall be applied to the
-------------
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series (other
than any Securities previously called for redemption) and (2) may apply as a
credit Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
-------- ----
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund.
------------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, which is to be
satisfied by payment of cash in the Currency in which the Securities of such
series are denominated (except as provided pursuant to Section 3.01) and the
------------
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.02 and, prior to or
-------------
concurrently with the delivery of such Officers' Certificate, will also deliver
to the
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Trustee any Securities to be so delivered. Not less than 45 days before each
sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
-------
11.03 and cause notice of the redemption thereof to be given in the name of and
- -----
at the expense of the Company in the manner provided in Section 11.04. Such
-------------
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.06 and 11.07.
-------------- -----
ARTICLE XIII
DEFEASANCE
SECTION 13.01. Applicability of Article.
------------------------
If pursuant to Section 3.01 provision is made for the defeasance of
------------
Securities of a series, and if the Securities of such series are denominated and
payable only in Dollars (except as provided pursuant to Section 3.01) then the
------------
provisions of this Article shall be applicable except as otherwise specified as
contemplated by Section 3.01 for Securities of such series. Defeasance
------------
provisions, if any, for Securities denominated in a Foreign Currency may be
specified pursuant to Section 3.01.
------------
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 and Section 10.06 with respect to Securities
- ---- ------------- ------------- -------------
of any series (and, if so specified pursuant to Section 3.01, any other
------------
restrictive covenant added for the benefit of such series) at any time after the
applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities of such series (i) money in an amount, or (ii) U.S. Government
Obligations (as defined below) which through the payment of interest and
principal in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an
amount, or (iii) a combination of (i) and (ii), sufficient in the opinion
(with respect to (ii) and (iii)) of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of
principal (including any mandatory sinking fund payments) of, and interest
on, the Outstanding Securities of such series on the dates such
installments of interest or principal are due;
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<PAGE>
(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.
"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 .
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<PAGE>
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 one year after the maturity of any series of Securities
for which money or U.S. Government obligations have been deposited pursuant to
Section 13.02.
- -------------
ARTICLE XIV
SUBORDINATION
SECTION 14.01. Securities Subordinate to Senior Indebtedness.
---------------------------------------------
The Securities shall be subordinated to Senior Indebtedness as set
forth in this Article Fourteen. The Company covenants and agrees, and each
----------------
Holder of a Security of any series by such Holder's acceptance thereof likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article Fourteen, the indebtedness represented by the Securities
----------------
of such series and the payment of the principal amount, interest and such other
amounts as provided for in Section 3.01, if any, in respect of each and all of
------------
the Securities of such series are hereby expressly made subordinate and subject
in right of payment to the prior payment in full of all Senior Indebtedness;
provided, however, that no provision of this Article Fourteen shall prevent the
----------------
occurrence of any default or Event of Default hereunder.
For purposes of this Article Fourteen, the following terms shall have
----------------
the following meanings:
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<PAGE>
(1) "Indebtedness," as applied to a Person, means, as of the date
------------
on which Indebtedness is to be determined and without duplication (i) all
obligations represented by notes, bonds, debentures or similar evidences of
indebtedness; (ii) all indebtedness for borrowed money or for the deferred
purchase price of property or services other than, in the case of any such
deferred purchase price, on normal trade terms; (iii) all rental
obligations as lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as
capital leases; and (iv) all Indebtedness of others for the payment of
which such Person is responsible or liable as obligor or guarantor.
(2) "Senior Indebtedness" means the principal of (and premium, if
-------------------
any) and interest on (including interest accruing after the filing of a
petition initiating any proceeding pursuant to any Federal bankruptcy law
or any other applicable Federal or State law, but only to the extent
allowed or permitted to the holder of such Indebtedness of the Company
against the bankruptcy or any other insolvency estate of the Company in
such proceeding) and other amounts due on or in connection with any
Indebtedness of the Company incurred, assumed or guaranteed by the Company,
whether outstanding on the date of this Indenture or hereafter incurred,
assumed or guaranteed and all renewals, extensions and refundings of any
such Indebtedness of the Company; provided, however, that the following
will not constitute Senior Indebtedness:
(A) any Indebtedness of the Company as to which, in the
instrument creating the same or evidencing the same or pursuant to
which the same is outstanding, it is expressly provided that such
Indebtedness of the Company shall be subordinated to or pari passu
with the Securities;
(B) Indebtedness of the Company in respect of the Securities;
(C) any Indebtedness of the Company constituting trade
accounts payable arising in the ordinary course of business; and
(D) any Indebtedness of the Company to any Subsidiary of the
Company.
SECTION 14.02. Payment Over of Proceeds upon Dissolution, Etc.
----------------------------------------------
Upon any distribution of assets of the Company in the event of:
(1) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets; or
(2) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy; or
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<PAGE>
(3) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Company; then and in such event
(A) the holders of Senior Indebtedness shall be entitled to
receive payment in full of all amounts due or to become due on or in
respect of all Senior Indebtedness, or provision shall be made for
such payment in cash, before the Holders of the Securities of any
series are entitled to receive any payment on account of the principal
amount, interest or such other amounts as may be provided for in
Section 3.01, if any, in respect of the Securities of such series; and
------------
(B) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, by
set-off or otherwise, to which the Holders or the Trustee would be
entitled but for the provisions of this Article Fourteen, including
----------------
any such payment or distribution which may be payable or deliverable
by reason of the payment of any other Indebtedness of the Company
being subordinated to the payment of the Securities of such series,
shall be paid by the liquidating trustee or agent or other Person
making such payment or distribution, whether a trustee in bankruptcy,
a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the principal of (and premium, if any)
and interest on the Senior Indebtedness held or represented by each,
to the extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness or
provision therefor.
In the event that, notwithstanding the foregoing provisions of this
Section 14.02, the Trustee or the Holder of any Security of any series shall
- -------------
receive any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, including any such payment
or distribution which may be payable or deliverable by reason of the payment of
any other Indebtedness of the Company being subordinated to the payment of the
Securities of such series, before all Senior Indebtedness is paid in full or
payment thereof provided for, and if such fact shall then have been made known
to the Trustee as provided in Section 14.10, or, as the case may be, such
-------------
Holder, then and in such event such payment or distribution shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this Article Fourteen only, the words "cash, property
---------------- --------------
or securities," or any combination thereof, shall not be deemed to include
- -------------
shares of capital stock of the Company as reorganized or readjusted, or
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinated, at
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<PAGE>
least to the extent provided in this Article Fourteen with respect to the
----------------
Securities, to the payment of all Senior Indebtedness which may at the time be
outstanding; provided, however, that (i) Senior Indebtedness is assumed by the
new corporation, if any, resulting from any such reorganization or readjustment,
and (ii) the rights of the holders of the Senior Indebtedness are not, without
the consent of such holders, altered, in any manner adverse to such holders, by
such reorganization or readjustment.
The consolidation of the Company with, or the merger of the Company
into, another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of all or substantially all of its assets
to another Person upon the terms and conditions set forth in Article Eight shall
-------------
not be deemed a dissolution, winding up, liquidation, reorganization, assignment
for the benefit of creditors or marshaling of assets and liabilities of the
Company for the purposes of this Section 14.02 if the corporation formed by such
-------------
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer all or substantially all of the assets of the Company,
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article Eight.
-------------
SECTION 14.03. Prior Payment to Senior Indebtedness upon Acceleration of
---------------------------------------------------------
Securities.
----------
In the event that any Securities of any series are declared due and
payable before their maturity in accordance with Section 5.02 because of an
------------
Event of Default, then and in such event the holders of Senior Indebtedness
shall be entitled to receive payment in full of all amounts due or to become due
on or in respect of all Senior Indebtedness or provision shall be made for such
payment in cash, before the Holders of the Securities of such series are
entitled to receive any payment (including any payment which may be payable by
reason of the payment of any other Indebtedness of the Company being
subordinated to the payment of the Securities of such series) by the Company on
account of the principal of (or premium, if any) or interest or other amounts on
Securities of such series as provided in Section 3.01, if any, or on account of
------------
the purchase or other acquisition of Securities of such series.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Securities of any series
prohibited by the foregoing provisions of this Section 14.03, and if such facts
-------------
then shall have been known or thereafter shall have been made known to the
Trustee (as provided in Section 14.10) or to such Holder, as the case may be,
-------------
pursuant to the terms of this Indenture, then and in such event such payment
shall be paid over and delivered forthwith to the Company by or on behalf of the
Person holding such payment for the benefit of the holders of Senior
Indebtedness.
The provisions of this Section 14.03 shall not apply to any payment
-------------
with respect to which Section 14.02 would be applicable.
-------------
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<PAGE>
SECTION 14.04. Default in Senior Indebtedness.
------------------------------
In the event and during the continuation of any default by the Company
in the payment of principal (and premium, if any) interest or any other payment
due on any Senior Indebtedness of the Company, as the case may be, beyond any
applicable grace period with respect thereto, or in the event that the maturity
of any Senior Indebtedness of the Company has been accelerated because of a
default, then, in any such case, no payment shall be made by the Company with
respect to the principal (including redemption or exchange payments, if any) of,
premium, if any, or interest or other amounts on the Securities until such
default is cured or waived or ceases to exist or any such acceleration or demand
for payment has been rescinded.
SECTION 14.05. Payment Permitted if No Default.
-------------------------------
Nothing contained in this Article Fourteen or elsewhere in this
----------------
Indenture or in any of the Securities shall prevent (a) the Company, at any time
except during the pendency of any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshaling of
assets and liabilities of the Company referred to in Section 14.02 or under the
-------------
conditions described in Sections 14.03 or 14.04, from making payments at any
-------------- -----
time of the principal amount, interest or such other amounts as may be provided
for in Section 3.01, if any, as the case may be, in respect of the Securities,
------------
or (b) the application by the Trustee or the retention by any Holder of any
money deposited with it hereunder to the payment of or on account of the
principal amount, interest or such other amounts as may be provided for in
Section 3.01, if any, as the case may be, in respect of the Securities if the
- ------------
Trustee did not have, at the time provided in the proviso to the first paragraph
of Section 14.10, notice that such payment would have been prohibited by the
-------------
provisions of this Article Fourteen.
----------------
SECTION 14.06. Subrogation Rights of Holders of Senior Indebtedness.
----------------------------------------------------
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities of any series shall be subrogated to the extent of the
payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article Fourteen to the rights of the holders
----------------
of such Senior Indebtedness to receive payments or distributions of cash,
property or securities applicable to the Senior Indebtedness until the principal
amount, interest or such other amounts as provided for in Section 3.01, if any,
------------
as the case may be, in respect of the Securities of such series shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities of such series or the Trustee would be entitled
except for the provisions of this Article Fourteen, and no payments pursuant to
----------------
the provisions of this Article Fourteen to the Company or to the holders of
----------------
Senior Indebtedness by Holders of the Securities of such series or the Trustee,
shall, as between the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities of such series, be deemed to be a
payment or distribution by the Company to or on account of the Senior
Indebtedness.
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<PAGE>
SECTION 14.07. Provision Solely to Define Relative Rights.
------------------------------------------
The provisions of this Article Fourteen are and are intended solely
for the purpose of defining the relative rights of the Holders of the Securities
of any series, on one hand, and the holders of Senior Indebtedness, on the other
hand. Nothing contained in this Article Fourteen or elsewhere in this Indenture
----------------
or in the Securities of any series is intended to or shall:
(1) impair, as between the Company and the Holders of the
Securities of such series, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders of the Securities of such series
the principal amount, interest or such other amounts as may be provided for
in Section 3.01, if any, as the case may be, in respect of the Securities
------------
of such series as and when the same shall become due and payable in
accordance with the terms of the Securities of such series and this
Indenture and which, subject to the rights under this Article Fourteen of
----------------
the holders of Senior Indebtedness, is intended to rank equally with all
other general obligations of the Company; or
(2) affect the relative rights against the Company of the Holders
of the Securities of such series and creditors of the Company other than
holders of Senior Indebtedness; or
(3) prevent the Trustee or the Holder of any Security of such
series from exercising all remedies otherwise permitted by applicable law
upon default or an Event of Default under this Indenture, subject to the
rights, if any, under this Article Fourteen of the holders of Senior
----------------
Indebtedness to receive cash, property or securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 14.08. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of a Security by such Holder's acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article Fourteen and appoints the Trustee such Holder's attorney-in-fact
for any and all such purposes.
SECTION 14.09. No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of, or notice to, the Trustee or the Holders of the
Securities of any series, without incurring responsibility to
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the Holders of the Securities of such series and without impairing or releasing
the subordination provided in this Article Fourteen or the obligations hereunder
----------------
of the Holders of the Securities of such series to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise dispose
of any property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any Person liable in any manner for the collection of Senior
Indebtedness and (iv) exercise or refrain from exercising any rights against the
Company or any other Person.
SECTION 14.10. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities of any series. Failure to give such
notice shall not affect the subordination of the Securities of such series to
Senior Indebtedness. Notwithstanding the provisions of this Article Fourteen or
----------------
any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities of such series, unless
and until the Trustee shall have received written notice thereof in accordance
with Section 1.05 from the Company or a holder of Senior Indebtedness or from
------------
any trustee or agent therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 6.01, shall be
------------
entitled in all respects to assume conclusively that no such facts exist;
provided, however, that if the Trustee shall not have received, at least three
Business Days prior to the date upon which by the terms hereof any such money
may become payable for any purpose (including, without limitation, the payment
of the principal amount, interest or such other amounts as may be provided for
in Section 3.01, if any, as the case may be, in respect of any Security of such
------------
series), the notice with respect to such money provided for in this Section
-------
14.10, then, anything herein contained to the contrary notwithstanding, the
- -----
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within three
Business Days prior to such date.
Subject to the provisions of Section 6.01, the Trustee shall be
------------
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee or
agent on behalf of such holder) to establish that such notice has been given by
a holder of Senior Indebtedness (or a trustee or agent on behalf of any such
holder). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Fourteen, the Trustee may request such Person to furnish evidence
----------------
to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Fourteen, and if such evidence is not
----------------
furnished, the Trustee may defer any payment which it may be required
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<PAGE>
to make for the benefit of such Person pursuant to the terms of this Indenture
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 14.11. Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets of the Company referred to
in this Article Fourteen, the Trustee, subject to the provisions of Section
---------------- -------
6.01, and the Holders of the Securities of any series shall be entitled to rely
- ----
upon any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities of such series, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Fourteen.
----------------
SECTION 14.12. Trustee Not Fiduciary for Holders of Senior Indebtedness.
--------------------------------------------------------
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
the Trustee shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to any other Person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article Fourteen or otherwise. The Trustee shall not be charged with knowledge
- ----------------
of the existence of Senior Indebtedness or of any facts that would prohibit any
payment hereunder unless the Trustee shall have received notice in accordance
with Section 1.05. With respect to the holders of Senior Indebtedness, the
------------
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article Fourteen and no
----------------
implied covenants or obligations with respect to holders of Senior Indebtedness
shall be read into this Indenture against the Trustee.
SECTION 14.13. Rights of Trustee as Holder of Senior Indebtedness; Preservation
----------------------------------------------------------------
of Trustee's Rights.
-------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Fourteen with respect to any Senior
----------------
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder.
Nothing in this Article Fourteen shall apply to claims of, or payments
----------------
to, the Trustee under or pursuant to Section 6.07.
------------
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<PAGE>
SECTION 14.14. Article XIV Applicable to Paying Agents.
---------------------------------------
The term "Trustee" as used in this Article Fourteen shall (unless the
------- ----------------
context otherwise requires) be construed as extending to and including the
Paying Agent within its meaning as fully for all intents and purposes as if the
Paying Agent were named in this Article Fourteen in addition to or in place of
----------------
the Trustee; provided, however, that Sections 14.10 and 14.12 shall not apply to
-------------- -----
the Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
_______________________
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 as of the day and year first above written.
TRIBUNE COMPANY
By: /s/ David J. Granat
-------------------------------
Name: David J. Granat
Title: Vice President/Treasurer
BANK OF MONTREAL TRUST
COMPANY, Trustee
By: /s/ Amy Roberts
-------------------------------
Name: Amy Roberts
Title: Vice President
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<PAGE>
EXHIBIT 8
SIDLEY & AUSTIN
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
<TABLE>
<CAPTION>
<S> <C> <C>
DALLAS ONE FIRST NATIONAL PLAZA WASHINGTON, D.C.
______ CHICAGO, ILLINOIS 60603 ______
LOS ANGELES TELEPHONE 312 853 7000 LONDON
______ FACSIMILE 312 853 7036 ______
NEW YORK SINGAPORE
FOUNDED 1866 ______
TOKYO
WRITER'S DIRECT NUMBER WRITER'S E-MAIL ADDRESS
</TABLE>
April 7, 1999
Tribune Company
435 North Michigan Avenue
Chicago, Illinois 60611
Re: Tribune Company
Exchangeable Subordinated Debentures Due 2029
---------------------------------------------
Ladies and Gentlemen:
We have acted as counsel for Tribune Company, a Delaware corporation
(the "Company"), in connection with the proposed issuance and sale of the
Company's Exchangeable Subordinated Debentures due 2029 (the "PHONES"). We
hereby confirm the opinion (the "Opinion") set forth under the captain "Certain
United States Federal Income Tax Considerations" in the prospectus supplement
(the "Prospectus Supplement") dated April 7, 1999 and filed pursuant to Rule
424(b) of the Securities Act of 1933, as amended (the "Securities Act"), in
connection with the registration statement (the "Registration Statement") on
Form S-3 (Registration No. 333-74961), filed by the Company with the Securities
and Exchange Commission on March 24, 1999. Capitalized terms used herein but not
defined have the same meanings as provided in the Prospectus Supplement.
In rendering the Opinion, we have relied upon, among other things,
facts furnished to us by the Company and contained in the Prospectus Supplement,
and have assumed that the transaction contemplated by the Prospectus Supplement
will be consummated in accordance therewith.
<PAGE>
SIDLEY & AUSTIN CHICAGO
Tribune Company
April 7, 1999
Page 2
We hereby consent to the use of our name under the caption "Certain
United States Federal Income Tax Considerations" in the Prospectus Supplement,
which is part of the Registration Statement. The issuance of such a consent does
not concede that we are an "Expert" for the purposes of the Securities Act.
Very truly yours,
/s/ Sidley & Austin
